Chapter - III

VICTIM OF RAPE
AND
LEGAL PROCEDURE
 Chapter - III

VICTIM OF RAPE AND LEGAL PROCEDURE

Judicial Courts works under the codified penal code (IPC) and their
procedure (Cr.P.c.) with effect to other laws and enactments in which judiciary
authorize to conduct their work in disposal manner with special effect to Rape
cases or other sexual offences in which important findings are to be short act by
way of Burden of proof, witnesses, investigation conducted by the police, powers
of the court to punish the accused quantum of sentence, probation and punishment
including rarest of rare cases as to admissibility of evidence in personal relation
with the accused person and their adverse inference towards the prosecution story
which differ from case to case in which society makes a negative route towards the
female (women) and their thought of weakness in the eyes of society or their myth.

A. Corroborative Evidence

According to the version of the victim of rape in court as an evidence court

looks and compare with other evidences also which is further in the way of
continuity of chain to prove the prosecution version and evidence available on
record. ‘Corroboration’ is a type of evidence which confirms or supports or
strengthens other evidence, in short it is the evidence which renders other evidence
more probable. The essence of corroborative evidence is that one creditworthy
witness confirms what another credit-worthy witness has said. In a case1 where the

victim reported the incident to her mother and their wearing apparel were also
found to be blood stained it is held that these facts were corroborative of the
offence of Rape witness who can prove that is the woman (victim) and the
conviction for such offence of rape almost entirely depends upon the credibility of
the woman so far as the essential ingredients are concerned, the other evidence
being merely corroborative. Her testimony is vital in case where the woman is

1. Abdul Sattar v/s State of Assam 1982 Cri. LJ. NOC 160 (Guhati).
married one and the medical evidence is no way corroborates the charge of rape.2
In Hardutt Case3 trial court simply questioned 8 years old victim with respect to
different facts and recorded finding based upon the medical evidence and eye
witness and sentenced the accused. Minor Child is involved in a rape case, and she
is competent witness and corroborate the evidence where them is no rule of law
that a child witness can not be believed4 and also decided in the Prempal Case.5
There is no role of practice that there must be, in every rape case, corroboration of
the evidence of the woman alleged to have been raped, like that of an accomplice
before the conviction on its basis can be allowed to stand. The Evidence Act
nowhere says that her evidence cannot be accepted unless is corroborated in
material particulars. Corroboration is not since qua non for conviction in rape case
it can be dispensed with in particular circumstances of the case when the court is
satisfied that it is safe to do so.6

Each case of Rape depends upon its facts and after taking all the
circumstances into consideration the evidence of the prosecutrix could be believed,
then the accused could be convicted on her evidence alone, although there is no
corroboration by an independent testimony connecting the accused with the crime.
In a important case7 Hon’ble Supreme Court of India decided that the question
whether the statement of the victim needs corroboration and in what particular and
what kind of corroboration should be sufficient and its eventual prinaples which
are given below-

(a) An omission to administer an oath, even to an adult, goes only to

the credibility of the witness and not his competency. The question

2. Kahcarippa v/s State AIR 1942 Mad 282.

3. Hardutt v/s State of Haryana 1998(2) RCR (Cri.) 214.
4. IPC: Commontary, Dr. Hari Singh Gaur Pg. 3248.
5. Prempal v/s State 1985(2) RCR 346.
6. Sanyasi v/s State, AIR 1983 SC 753: 1983 Cri. L.J. 1096; B.B. Hirjibhai v/s State
1983(2) Crime 232: Dhrup Sharma v/s State of Punjab(4) RCR (Cri.) 126; S.S.
Akadi v/s Sate of Maharashtra 1974 Cri. L.J. 86.
7. Rameshwar Kalyan Singh v/s State of Rajasthan AIR 1952 SC 54: 1952 Cri. L.J.
547: 52 SCR 377.

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 of competency as regards child-witness in dealt by S.118 of
Evidence Act, Oath Act S.13 does not effect the admissibility of the
evidence.

(b) The rule, which according to the cases has hardened into one of the
law, is not that corroboration is essential before there can be a
conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense
with it, must be present in the mind of the judge, and in jury, must
find place that the charge, before a conviction without corroboration
can be sustained. The tender age of the child which is victim of the
sexual offence, couplet with other circumstances appearing in the
case, such, for example, as its demeanour, unlikelyhood of tutoring
and so forth, may render corroboration unnecessary but that is a
question of fact in every case. The only Rule of Law is that this rule
of prudence must be present in the mind of the Judge or the Jury as
the case may be and be understood and appreciated by him or them.
There is no rule of practice that these must, in every case be
corroboration before a conviction can be allowed to stand.

(c) Where corroborative evidence is produced it also has to be weighed

and in a given case, as with other evidence, even though it is legally
admissible for the purpose in hand, its weight may be Nil.

The law as regards to the worthiness and credibility of the victim in sexual
offence in the question of acting upon the same as basis for finding bad intention
and the necessity of corroboration to the same has been laid down in following
ways as decided by Double Bench in the case titled as Sitaram v/s Satate of
Maharashtra.8

8. 1974 Cri. L.J. 82 (DB).

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1. There is no rule of law that corroboration is essential before there can be a
conviction solely on the testimony of the victim. But as matter of prudence,
the necessity of corroboration must be present in the mind of the Judge.

2. There may be circumstances in a given case which might make it safe to

dispense with such corroboration.

3. In the other hand, there may be factors in a case tending to show that the
testimony of the prosecutrix suffers from infirmities or defects, in a manner
so as to make it either unsafe or impossible to base a finding of guild on the
same. Some salient factors of the types may be briefly stated as follows:

(a) Circumstances show in on the part of the prosecutrix an animus

against the accused;

(b) where the question of want of consent is material, circumstance

tendering to consent, e.g. absence of material showing an attempt of
resistance; absence of any struggle makes;

(c) attempts of improvements or exaggeration in the erosion as

attempted by the prosecution.

(d) Elements of artificiality or un-naturalness in the story as attempted

by the prosecutrix;

(e) Conduct on the part of prosecutrix, inconsistency with the

credibility of version e.g. omission to make a disclosure at the
earliest opportunity; and

(f) absence of sign of rape in the findings of the medical examination

or chemical analysis.

In a rape case conviction of the accused can be based solely on the

evidence of the prosecutrix if her evidence is “worthy of credence” the Rule of
Corroboration is not Rule of Law, it a only Rule of Prudence it is advisable but it is

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not compulsory in the eye of law because then no formula or procedure of any type
of which could tell that what kind of evidence should or would not be corroborated
or what kind of single evidence for conviction of the accused for evidence of
victim entitling to great weight and care as decided in the various judgment of
Rape Case.9

Bundhan v/s State 1961 Pat 217: 1961 Cri. L.J. 689;

Krishnan Chitan v/s State of Kerela 1962 Cri. L.J. 650;

Gopi Shankar v/s State of rajasthan 1967 Cri. L.J. 922;

Madh. Ram v/s State of U.P. AIR 1973 SC 469;

R.K. Agarwal v/s State of Orissa AIR 1976 SC 1774: 1976 Cri. L.J. 1376;

Shaik Zakir v/s State of Bihar AIR 1983 SC 911: 1983 Cri. L.J. 1265;

Biswash v/s State 1985(1) Crimes 505;

Jagdish Prasad v/s State 1995 Cri. L.J. 2501;

Zamir Ahd v/s State 1996 JCC 317;

Rabinarayan Dass v/s State 1992(1) Crimes 462;

Nageswar Rao v/s State of Orissa 1993 Cri. L.J. 1822.

In a case10 accused alleged to have committed rape on her minor daughter-

in-law prosecutrix in cross-examination stood firm and totally embedded. She
clearly stated that she was in such a helpless situation that she could not even raise
an alarm. It was held that if the testimony of victim is reliable, credible and
unimpeachable there is no need of any corroborative evidence.

9. Nathu v/s State 1951(52) Cri. L.J. 584: AIR 1951 Rajasthan 60; Rameshwar Kalyan
v/s State of Rajasthan AIR 1952 SC 54: 1952 Cri. LJ. 547, 1952 Raj. Cri. L.J. 502;
1952 SCJ 46; Sidheswar Gangauli v/s State of W.B. AIR 1958 SC 143: 1958 Cri.
L.J.273;
10. Ram Kumar v/s State of M.P. 2003 Cri. L.J. (NOC) 18(MP).

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 Statement made by raped girl to another person immediately after the rape
is admissible in evidence as corroborative evidence as held in Sheikh Zakir Case.11
It is a cardinal rule in the law of evidence that the best available evidence should
be brought before the court. The court is empowered under the provisions of the
code of compel either the prosecution or the defence to examine any particular
witness or witnesses on their side. This must be left to the parties. But in weighing
the evidence, the court can take note of the fact that the best available evidence has
not been given, and can draw an adverse inference as held in Jharkhand Case.12
The Court may accepted the testimony of single witness is credible. Only if the
court is not satisfied about the credibility of the evidence of a single witness, court
may look for corroboration.13

B. Circumstantial Evidence

Circumstantial Evidence is very important and necessary they must deal

with utmost sensitivity. The court should examine the broader probabilities of a
case and not get swayed by the minor contradiction or insignificant discrepancies
in the statements of the witnesses, therefore, the courts shoulder a great
responsibility while proceed the criminal case. In a case14 where the victim belongs
to foreign country and while returning to their respective place of residence were
way laid and robbed of their belongings and thereafter two of victims were raped
by accused persons. Evidence of victims that accused were flashing torch light on
their bodies because of which they could identify the persons who had raped them
was believed. Articles belonging to victims were recovered from accused persons
soon after the commission of crime. It was held that on the basis of circumstantial
evidence in respect of recovery of various articles from their possession conviction

11. Sheikh Zakir v/s State 1983 SC 911=1983 Cri. L.J. 1285=1983 SCC Cri. 761=1983
CAR 334.
12. Rama Paswan and others v/s State of Jharkhand 2007(2) Law Herald (SC) 1373.
13. Buta Singh v/s State of Punjab 2007(2) Law Herald (P&H) (DB) 1473.
14. Thambi Nasir v/s State, 2003 Cri. L.J. 493 (Bombay).

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of accused was proper. It was held in a case15 that man tell lie, circumstances do
not.

In C. Chenga Reddy v/s State of A.P. Case16 it has been observed that in a
case based on circumstantial evidence, the settled law is that the circumstances
from which the conclusion of guild is dawn should be fully proved and such
circumstances should be complete and there should be no gap left in the chain of
evidence. Further, the proved circumstances must be consistent only with the
hypothesis of the guild of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Case17 it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the following tests:

1. The circumstances from which an inference of guild is sought to be drawn,

must be cogently and firmly established.

2. Those , circumstances should be of a definite tendency unerringly pointing

towards guild of the accused.

3. The circumstances, taken cumulatively, should form a chain so complete

that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else.

4. The circumstantial evidence in order to sustain conviction must be

complete and incapable of explanation of any other hypothesis than that of
guild of the accused and such evidence should not only be consistent with
the guild of the accused but should be inconsistent with his innocence.

In another case18 while declining circumstantial evidence, it has been hold

that the anus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false evidence or plea.

15. Kamaljit Singh v/s State of Punjab 2007(2) Law Herald (P&H) (DB) 1449.
16’ 1996 (10) SCC 193.
17. Pedala Veera Reddy v/s State of A.P. (AIR) 1990 SC 79.
18. Sharad Birdhichand Sarda v/s State of Maharashtra AIR 1984 SC 1622.

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The condition precedent in the words of this court, before conviction could be
based on circumstantial evidence, must be fully established. They are as under:-

1. The circumstances from which the conclusion of guild is to be drawn

should be fully established. The circumstances concerned must or should
and not may be established.

2. The facts so established should be consistent only with the hypothesis of

the guild of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty.

3. The circumstances should be of a conclusive nature and tendency.

4. They should exclude every possible hypothesis except the one to be proved;
and

5. There must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.

In a latest case19 decided by the Supreme Court it is held that in a murder

and Rape case onus is on the prosecution to prove that chain is complete and
circumstances must be proved.

In a case20 where the accused is acquittal and state went to the appeal in
Kerala High Court, where it was observed that accused alleged to have committed
rape and murder of victim, a minor girl. Prosecution established fact that deceased
was last seen in company of accused. Dead body of accused was recovered from
Paddy field on next day. No explanation by accused as to how and in what manner
deceased parted company with him. Recovery of dead body, school bag and

19. Shiva and Another v/s R.G. High Court of Karnataka and Anth. 2007(1) Law
Heralad (SC) 900.
20. State of Kerala v/s Rajan alias Nasam, 2004. Cri. L.J. 715 Kerala.

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umbrella belonging to deceased on basis of information furnished by accused.
Results of scientific examination of hair collected from scene of occurrence and
from accused can be relied on along with other circumstances connecting accused
with crime, hence, it was held that acquittal of accused is not proper.

In another case21 where the evidence was purely circumstantial in nature,

the facts and circumstances from which the conclusion of guild was sought to be
drawn must be folly establish beyond any reasonable doubt and such circumstances
must be folly established beyond any reasonable doubt and such circumstances
must be consistent and unerringly point to the guilt of the accused and the chain of
circumstances must be established by the prosecution. It was observed that
deceased was identified from skeletal remain and wearing apparels. It was held that
deceased was identified by her mother from wearing apparels. Identity was
believed holding that women have an inherent sense of identifying the wearing
apparels of their daughters. Accused committed rape and threw the prosecutrix in
well. Skeleton remains recovered after two months photograph of deceased sent for
superimposition test to Forensic Sciences Lab. Superimposition of the skeleton
remains of the deceased conducted with reference to the photograph of he
deceased. Doctor conducting post-mortem examination of skeleton remains gave
age of deceased between 15 to 16 years, said report corroborated by doctor of
forensic lab, who examined skeleton remain in court. Identity of deceased well
established beyond doubt.

In Ratan Lai Case22 body of deceased girl aged 4‘A years was found lying in

inner verandah of quarter which was in possession of accused. Fact that human
semen was found in vaginal Smear of deceased is sufficient to prove that she was
subjected to intercourse. Pant and shirt of accused recovered at his instance and on
the information found contained with blood of the same group as of deceased.
Conduct of accused in not disclosing fact to police that dead body of girl was lying

21. Golakunda Venkateswamee Rao v/s State of A.P. AIR 2003. SC 2846=2003 Cri. L.J.
3731=2003(4) RCR (Criminal) 581(SC).
22. Ratan Lai v/s State of Rajasthan, 2004 Cri. LJ. 228 (Rajasthan).

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in his quarter, is unnatural. Possibility of committing rape elsewhere and then
throwing dead body in quarter ruled out by presence of blood beneath dead body of
deceased. Circumstances relied upon by prosecution and found proved are of
conclusive nature and consistent only with guild of accused hence conviction of
accused was held proper.

Circumstantial evidence is probable and has a great weight in those cases

where victim is not available for evidence due to gruesome of murder and in cases
of child witness or any other reliable witness which are not of fatal nature to throw
out an reliable prosecution case and discretions are required to be exercised with
great caution and only when the exigency of Justice is required.23

C. Child Witness

In everyday morning the frontline of the newspaper is related to the child

rape news. In most cases these offenders are usually well known, friends, relatives
or neighbour of the child. Children are facing the dangerous acts like rape or sexual
molestation and their rapid increasing data day by day. Even four months young
baby raped by the accused and murdered and later dispose the dead body of child
by throwing into a well as in the case titled as Siddik Singh v/s State of
Maharashra.24 Thus when such children of immature age are involved in a rape
case question of legality of their version comes and it plays very important part in
conviction unlike those victims of above age of maturity as the child herself
becomes a witness to the prosecuting proceedings. According to Indian Evidence
Act, 1872, so far it relates to the rape case, the presumption as to consent in certain
prosecutions for rape as in Section 114-A.25

In a prosecution for rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) for subsection (2) of section 376 of the Indian
Penal Code (45 of 1860), where sexual intercourse by the accused is proved and

23. Harman Singh v/s M/s Bhushan Metallics Ltd. 2007(2) Law Herald (P&H) 1272.
24. 1993(1) CCR 1671.
25. Sec. 114-A: Indian Evidence Act, 1872.

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the question is whether it was without the consent of the woman alleged to have
been raped and she states in her evidence before the court that she did not consent,
the court shall presume that she did not consent. But where the girl or victim is
below the age of consent, her consent will not be a matter so far as the offence of
rape is concerned, but if she has consented her testimony will naturally be
suspected as that of an accompliance, thus court seldom convicts upon the
uncorroborated evidence of a woman.26 The statement of the mother of the child

victim consisting of what had been narrated to her by her daughter shortly after the
incident, amounts to corroboration, and what weight should be attached to the
evidence is entirely a different matter as held in Rameshwar Case.27 While

corroboration of the child victim it should be remembered that whether it is a safe

to convict on the solitary statement of the complainant, it depends upon the
circumstances of each individual case. In countries like India there is Rape case
where girl makes false allegation of sexual assault due to various psycho-social
factors and when in the face of those factors if the crime is brought to the light
there is a built-in-assurance that the charge in genuine rather than fabricated as
held in Bhubinder Prakash Case,28 and the parents of a tender age girl child can not
7Q
be expected to set up such case of rape thereby ruining the whole life of the child.
It is not the law that if a witness is child the evidence shall be rejected, even if it is
found reliable. The law is that evidence of a child witness must be evaluated more
carefully and with greater circumspection because a child is susceptible to be
• "30
swayed by what others tell then and thus a child witness is easy prey to tutoring.

26. Mung Ba Tin v/s Emperor AIR 1927 67: 27 Cri. L.J. 1284.
27. State of Rajasthan v/s Rameshwar AIR 1951 Raj 30.
28. Bhubinder Prakash v/s State 1985(1) Crimes 524.
29. Jito v/s State of HP 1990 Cri. L.J. 1434.
30. National Commission for Women v/s State of UP AIR 1998 SC 2726=1998 Cri. L.J.
4044.

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 In case of Harpal Singh31 it was observed that when the victim narrated her
story before the Magistrate as well as the sessions Judge, in spite of minor
contradictions hence and there her testimony was consistent and believable.

In a case32 the prosecutrix aged about twelve years alleged to have been
raped by the accused while she was grazing cattle. Incident told by victim to
another lady who was returning after lunch for grazing cattle victim though gave
some discrepant evidence, here evidence corroborated by other witnesses and it
was not a case of tutoring. Medical evidence full supported prosecution and injury
received by victim fully proved factum of rape as spermatozoa was found on
vaginal swab. Plea of enmity tried to be set up accused but denied by father of
prosecutrix (victim), as accused was belonging to other village, therefore,
conviction of accused was held proper.

In a case33 victim child of 5/6 years appeared in the court she did not even
raise a finger on accusation although 15/16 month lapse when incident occurs it is
held that case does not create any doubt.

In a case34 accused appeal in the Hon’ble Punjab & Haryana High Court
against the conviction order of session Judge. In that case accused age about 32/33
years rape on child of 5 years regarding this it was held that statement of child
witness was natural, true and voluntary and supported by medical evidence hence
conviction was upheld. If the rape is committed by stranger during investigation
police arrested Sheoki accused and other no identification parade was held
prosecutrix identify the accused in court and also prove the medical evidence. It
was held that corroboration is not sine qua non for conviction in rape case. If

31. Harpal Singh v/s State 1987(1) Crimes 645.

32. Birjhan Sao v/s State of Bihar (now Jharkhand), 2004 Cri. L.J. 1519.
33. Kapoor Singh @ Kapoora v/s State of Haryana 2005(2) JR (Criminal) 354=2005(2)
RCR (Criminal) 240 (P&H).
34. Malkiat Singh v/s State of Punjab, 2005(2) JR (Criminal) 158 (P&H) (DB)=2005(1)
RCR (Criminal) 269 (P&H).
35. Sheoki @ Sheokat ali v/s State of Rajasthan, 2005(1) RCR (Criminal) 523
(Rajasthan).

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forensic evidence showed presence of semen on the clothes of the accused and also
on the ‘Pyjami’ of victim and accused identified by the child victim of 7 years and
8 months conviction upheld.36 Minor inconsistence in the statement regarding
place of occurrence would be immaterial.37

Regarding child witness Hon’ble Supreme Court of India held contradiction

and inconsistencies in deposition if the victim is child and held that discrepancies
cannot attracted to minor discrepancies and held as under in the case.38

1. By the large a witness cannot be expected to possess a photographic

memory and to recall the detail of an incident. It is not as if a video tape is
replayed on the mortal screen.

2. Ordinarily it so happens that a witnesses is over taken by events. The

witness could not have anticipated the occurrence which so often has an
element of surprise. The mental faculties, therefore, cannot be expected to
be attuned to absorb the details.

3. The powers of observation differ from person to person. What one may
notice, another may not. An object or movement might emboss it image on
one person’s mind. Whereas it might go unnoticed on the part of another.

4. By and large people cannot accurately recall a conversation and reproduce

the very words used by them or heard by them. They can only recall the
main purport the conversion. It is unrealistic to except a witness to be a
human tape recorder.

36. Narotam v/s State of Haryana 2005(1) JR (Criminal) 594 (P&H)=2005(1) RCR
(Criminal) 321 (P&H) (D.B.).
37. State of H.P. v/s Gian Chand, AIR 2001 SC 2075=2001(8) SCC 71=2001(5) JT 169
(SC)=2001(3) Supreme 588=2001 Cri. L.J. 2548=2001 Cr. L.J. 434=2001(2) RCR
(Criminal) 666=2001 Judgment online 1132.
38. State of Karnataka v/s Revannaich, 2005(3) Criminal Law Journal 2676=2005(3)
RCR (Criminal) 863 (Karnataka) (DB).

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5. It regard to exact time of an incident, or the time duration of an occurrence,
usually, people make their estimates by guess work on the spur of the
moment at the time of interrogation. And one cannot expect people to make
very precise or reliable estimates in such matters. Again, it depends to
make very precise or reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from person to person.

6. Ordinarily a witness cannot be excepted to recall accurately the seque3nce

of events which takes place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when interrogated later on.

7. A witness, though wholly truthful, is liable to be overawed by the court

atmosphere and the piercing cross-examination made by counsel and out of
nervousness mix up facts, get confused regarding sequence of events, or
fell up details from imagination on the spur of the moment. The
subconscious mind of the witness sometimes so operates on account of the
fear of looking foolish or being disbelieved though the witness is giving a
truthful and honest account of the occurrence witnesses by him - Perhaps is
a sort of psychological defence mechanism activated or the spur of the
moment.

8. Discrepancies which do not go to the root of the matter and shake the basic
version of the witnesses, therefore, cannot be annexed with undue
importance. More so when the all important ‘Probabilities factor’ echoes in
favour of the version narrated by the witnesses 1983(2) RCR (Criminal)
192 (SC) relied.

No injury on external masks of her body it does not mean that rape was not
committed.39 According to doctor report the victim was habitual to sexual
intercourse it is held that it does not mean that it does not mean that it given license

39. Rafik Khan Aggar Khan Pathan v/s State of Gujarat, 2005(2) Cri. LJ. 1284=2005(2)
RCR (Criminal) 694 (Gujarat) (D.B.).

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to any person to rape her, she has a right to refuse to sexual intercourse.40

Conviction uphelt where victim a child of 10 years and her witness was supported
by medical evidence.41 In a case42 Rape was committed with the child of 6 years of

age, child of such a age cannot expected of keep in mind an unsavory incident at
the time of such happening she would not comprehended as to what was happening
to her, statement of child recorded after 4 years and then is contradictions in her
statement there is no effect it is for the court to mainly rely on which the child
disclosed to adult witness about the happening and all the facts of adult is
believable and got confirmed. In a Case43 accused tried to rape on minor girl of 5

years no penetration is done by accused it is held that accused is guilty of attempt

to commit rape and convicted under section 376(2) (f) read with 511. Slightest
penetration is sufficient for the completion of the offence of rape.44 Injury on male

organ not necessary. Sexual abuse of any nature other than penile penetration is
falls under unnatural intercourse and falls under Section 377 IPC.45 In a case46 the

lady medical officer said according to her opinion was based on the fact that
hymen of child was intact it is held that even a slight penetration in the vulva is
sufficient to constitute the offence of rape and rupture of the hymen is not

40. State of Punjab v/s RD Singh AIR 2004 (SC) 1290=2004 SCC (Criminal)
307=2004(1) Crimes 149=2004(1) RCR (Criminal) 346 (SC)=2004(2) Criminal
Court Cases 01=2004(1) Apex CJ 427=2003 Judgments Online 1136=2004(1) All
India Criminal L.R. 733.
41. Cheema Rama Rao v/s State of A.P., 2005(1) RCR (Criminal) 560 A.P.
42. State of Karnataka v/s Revannaiah, 2005(3) Criminal LBW Journal 2676 (D.B.)
Kamatka.
43. Sanju @ Sanjay Patangrao- v/s State of Maharashtra, 2004(1) Criminal L.J.
1102=2004(2) RCR (Criminal)528 (Bombay).
44. Tarsem Kumar v/s State of Haryana, 2004(2) RCC 599=2004(1) RCR (Criminal)
773 (SC).
45: Shakshi v/s U.O.I., 2004 SCC (Criminal) 1645, 1670 and 1671=2004(3) Crimes
177=2004(3) Criminal L.J. 2881=2004(3) RCR (Criminal) 703 (SC).
46. State of Karnataka v/s Revannaiah, 2005(3) Criminal L.J. 2676=2005(3) RCR
(Criminal) 863 (Karnataka) (DB).

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necessary, swelling and tenderness on the private part is sufficient to prove sexual
offence.47

In Thogorani Case48 the accused developed relationship with prosecutrix

and giving her assurance of marriage and sexual intercourse with a minor girl in
result two children bom out of this relationship in this case it is held that court has
an ample power under Section 53 of Cr.p.c. to conduct DNA test of accused to
established paternity of children.

In Rupavath Mathi Ram Case49 rape is committed by the accused on minor

girl of 14 years of age, defence version is sought to enmity with brother of victim
and accused falsely implicated in the case. Defence version is not believable it is
held that no parents will go to imposing such type of false allegation which will
ruined the life of her girl as well as reputation of family, further in other case50
accused defence is that he was falsely implicated due to litigation with father of
girl it is held that contention of the accused is not believable because it is highly
improbable that for making false implication of his minor girl, her daughter would
have to suffer in public with a stigma for her father life.

In rape cases it seems that psychological assault is more dangerous than

physical injury because the latter has property of healing but the farmer is not. In
case of rape the victim suffer from body aches, headaches, uncontrollable crying
etc. Rape victims may also under suicide, separation from family, loss in
concentration in study and have tendency to forget the things State Government

47. Nirmal Kamar @ Kaka v/s State of Haryana 2002 (2) RCC 340=2002(2) RCR
(Criminal) 1341.
48. Thogorani @ K. Dangyanti v/s State of Orissa, 2005(1) RCR (Criminal) 346 (Orissa)
(D.B.)
49. Rupavath Mathi Ram v/s State of A.P. 2004(3) Cri.LJ. 106=2004(1) RCR
(Criminal) 885 (A.P.)
50. Parkash v/s State of Haryana, 2004(SC) AIR 227=2004(1) SCC 339=2004 Cri. L.J.
595=2004(1) RCR 109=2004(1) CCC 305=2004(1) Apex CJ 156=2003 Judgment
online 1115.

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has also devise a “Victim Assistance Programme” as advised by the Punjab &
Haryana High Court in a case titled as Narotam v/s State of Haryana.51

Under the light of above said facts and cases recording the child’s evidence
is a severe problem A little child has to related the honour in from of as many
officials by recounting the tale again and again. Getting them to repeat the story
cannot only further traumatize the child but also affect the clarity. A (PIL) Public
Interest Litigation was filed contending that interpretation of sections 375, 376 and
other sections of I.P.C. are not in tune with current state of affairs in society. At
Supreme Court suggestion a note about the precise issues involved and was
submitted for consideration by Law Commission of India. The Apex Court held
that issues are important and in view of growing menace of sexual abuse of
children Law Commission was requested to examine within three months for
amendment of Penal Code or of dealing with the problem in any other manner. The
matter was adjourned by three months with the hope that the Law Commission
would be able to devote its attention to the issues raised in the submission note in
the meanwhile. The case was ordered to be listed after three months for directions,
otherwise it would be grave injustice with the victims due to delay in making
special provisions of law.

Indian laws dealing with sexual offences not specifically mentioned child
sexual abuse. A form of sexual abuse is not cover under the IPC. Just as the law
makes a distinction among rape, gang rape and custodial rape, in needs to
differentiate between sexual abuse by parents or relatives of a child and also it
needs to punish the accused in serious manner because of the permanent scar on
the psyche of the victim child. In fact, child sexual abuse exists in India on a
comparable scale to the rest of the world. In a case father of the victim child
sexual abuse their daughter and the mother also submitted that the father had been

51. 2005(1) JR (Criminal) 594 (P&H)=2005(1) RCR (Criminal) 321 (P&H) (D.B.)
52. See the article of Pinki Virani on “Institution of a listing child abuse”, Published in
The Pioneer dated 6.11.1996, P.7.
53. SatishMehra v/s Delhi Administration (1996) 9 SCC 766.

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sexually abusing their daughter from the age of three while they were in the united
state, after the medical examination the girl revealed a wide vaginal opening which
is wider than expected of their age group, hence abuse by a parent or relative needs
to be treated as a more serious offence, mostly by a person who has a position or
have a duty/authority over the protection of their child for the bright future of our
next generation. Evidence of a child witness must be evaluated carefully because
he is an easy to tutoring.54

D. Absence of Injury on the Victim

In rape cases absence of injury on the victim body sometimes become fatal
as to punish the accused and there adverse benefit goes to the wrong does which
victim of rape give rise to an inference that she was commenting party. If the
woman is unwilling to have sexual intercourse it is expected that she will receive
injury on her person during the struggle. The absence of injury on her generally
give rise to an inference that she was commenting party but if the victim received
multiple injury on her person it will indicate that she offered resistance when she
was subjected to sexual intercourse and it would not surrender willingly for her
virtue and virginity which is the precious possession, therefore she will never gave
a free consent to a rapist as in a case titled as Babu v/s State, and Madanlal v/s
J&K.55

It was held56 that assuming consent of the victim in absence of injury would

amount to leaving the unprotected girls at the mercy of the society. The victim may
frightened or unnerved or for fear of being assaulted she might had not resisted it
c*7

will not amount to give free consent as held in Mahbood Case. If injury was not
found on the private parts of the victim it cannot be said that the sexual intercourse

54. Pale Ram v/s State of Haryana 2007(2) Law Herald (P&H) 1424.
55. 1984 Cri. L.J. 74 NOC (Raj), 1997(4) RCR (CCI) 89 (SC).
56. Idan Singh v/s State 1977 Cri. L.J. 556 (Raj.)
57. State v/s Mahbood 1987 (Cri. L.J. 940) (Kant.)

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was committed with consent as held in Bhanwaria case58 and where the girl had
attained the age of puberty injury on the private parts are not necessary.59

In Kishan Lai Case60 the victim age was 14/16 years it was held that injury

to hymen not necessary because shape and texture of the hymen is variable,
sometimes this variation permits penetration without injury or increased elasticity,
sometimes the hymen may be more firm less elastic and gets stretched and
lacerated earlier. It relatively less forceful penetration which may not give rise in
injuries ordinarily possible with a peaceful attempt but in the other case61 medical

examination of the victim is conducted by the doctor after 8 hours of incident as

per the doctor report victim was habitual of sexual intercourse. No bleeding and
fresh sign of hymen tear found by doctor. The High Court set aside the conviction
order panel by the session judge and held that evidence of victim and. evidence of
doctor cannot be reconciled.

In Anmula Raji Reddy Case62 Additional Session Judge cum Special Judge

convict the accused under Section 3(2)(v) of SC and ST act read with section 376
IPC and awarded 10 years imprisonment and fine of Rs.2000/- but later Hon’ble
High Court acquit the accused on the following grounds:-

(a) Rape committed in the field - No marks of violence in or around

private parts of victim.

(b) No injuries on thigh, legs, back, face, chest etc.

(c) No nail marks found on the body of accused.

(d) Pieces of bangles not deposited nor marked by prosecution.

58. Bhanwaria v/s State 1994 Cri-. L.J. 3742 (Raj.) c.

59. Gulam Mohd Khan v/s State 1989 Cri. L.J. 1203; Pillai v/s State 1990(1) Crimes 261
(Ker).
60. Kishan Lai v/s State of Raj, 2005(2) Criminal Law Journal 1519=2005(2) RCR
(Criminal) 686(Raj) (Jaipur Bench).
61. Ashok Shamrao Thakara v/s State of Mah. 2005(1) RCR (Criminal) 226 (Bombay).
62. Anmala Raji Reddy v/s State of A.P. 2005(1) Criminal Law Journal 220=2005(1)
RCR (Criminal) 675 (A.P.).

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 (e) There were marks of semen on clothes of prosecutrix but not on
genital tract or private parts.

(f) Medical evidence not support the evidence of victim.

(g) Solitary testimony of prosecutrix not be believed.

In a Rajasthan Case63 there was no injury in the vagina but there was fresh

fear of hymen. The victim stated that the accused forcibly inserted his male organ
in her vagina. She further stated that the appellant indulged with her in the act for
some time only. There was no doubt, that she did not receive injuries in vagina, no
semen was found on her person. The swab, which was taken from her vagina was
negative for semen and no injury found on the penis of the appellant. However, the
statement of the victim was not negative as to the penetration by any of the
aforesaid circumstances. There was nothing to disbelieve that penetration was
effected and this fact was corroborated by the tear caused to hymen. No doubt,
hymen can be tom for variety of reasons but the question was whether the
statement of the victim in the circumstances of the case could be held to be
reliable. The presence of fresh tear of hymen corroborated the statement of the
victim. The penetration obviously was not full. The penis did not ejaculate any
semen. Nevertheless penetration was there and the accused was convicted although
them was no injury on the vagina and on the other of complete sexual intercourse
is committed absence of injury on private parts of the girl militates the story of
sexual intercourse as held in Jagmal Singh Case.64 In another case65 it was held that

if the medical report does not disclose any evidence of sexual intercourse, yet even
in the absence of any corroboration of medical evidence, the oral testimony of the
prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has
to be accepted.

63. Thakaria v/s State of Rajasthan 1980 Cr. L.R. (Raj) 707.
64. Jagmal Singh v/s State of Rajasthan, 1980 Cr. L.R. (Raj) 446.
65. B.C. Deva v/s State of Karnataka 2007(3) Law Herald (SC) 2309.

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E. Burden of Proof

In every criminal case essential ingredients of the criminal offence is

always on the part of the victim or suffer or it is an exception. The rule is that if
any general exception contained in the Indian Penal Code is pleaded by the
accused and evidence is given to support such a plea, but such evidence fails to
satisfy the court affirmatively of the existence of circumstances of the case within
the exception the accused is entitled to be acquitted under Section 10566 it is
described as “when a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions
in the Indian Penal Code, XLV of 1860, or within any special exception or
provision contained in any other part of the same code, or any law defining the
offence is upon him, and the court shall presume the absence of such
circumstances. It was held in a case67 that court can partly reject and partly accept
the evidence of the witness.

The Supreme Court of India in K.M. Nanavati Case68 observed that as in

England so in India, the prosecution must prove the guilt of the accused, it must
establish all the ingredients of the offence with which he is charged, the general
burden of proof is upon the prosecution and if on the basis of the evidence adduced
by the prosecution or by the accused, there is a reasonable doubt whether the
accused committed the offence, he is entitled to the benefit of doubt. In Indian
Criminal Law, if an accused pleads an exception within the measuring of section
80 of the Indian Penal Code, there is a presumption against him and the burden to
rebut that presumption is on him.

In a Case69 Supreme Court held that burden is on the prosecution to prove

each and every ingredient of offence, absence of consent being one of them. The

66. Sec. 105: Indian Evidence Act, 1872.

67. State of Maharashtra v/s Tulsiram Bhanudas Kamble, 2007(3) Law Herald (SC)
2577.
68. K.M. Nanavati v/s State of Maharashra, AIR 1962 SC 605, 618.
69. Udai v/s State of Karnataka, 2003(2) RCR (Criminal) 99 (SC)=(2003) 4 SCC 46.

131
question is to whether in case of rape, the misconception of fact contemplated by
S. 90 has a wider application so as to include circumstances not enumerated by S.
90 has a wider application so as to include circumstances not enumerated in S. 375
was held not necessary to be considered herein and accused was found not guilty
of rape.

In Case of Joginder Singh v/s State70 it was observed that there is an initial
presumption of innocence of the accused and the prosecution has to bring the
offence home to the accused by reliable evidence. The accused is entitled to benefit
of every reasonable doubt. In the instant case it could not be established beyond
doubt that the sexual intercourse was committed by the accused with the victim girl
without her consent or against her will. Consequently, the offence under Section
376 IPC was not established.

F. Reputation of Victim of Rape

Every woman have a reputation and also every woman is respected their
nature and living standard. Brave woman’s always shout their problem without any
fear and delay. In the famous case of Rupan Deol Bajaj71 in which she was raesi
the objection against the bad act of Sr. Police Officer K.P.S. Gill and later
punished by the Supreme Court of India. In a Case72 accused is acquitted by the
lower court and acquittal of accused was held liable to be set aside on the ground
that Bad character of victim is not relevant to draw conclusion that she had given
her consent if evidence of victim was corroborated by evidence of her father and
mother and also with medical evidence. In Ranvir Singh Case73 appellant
committed rape on prosecutrix when she tool lift in his truck defence plea was that
prosecutrix was a woman of easy virtue and consent for sexual intercourse.

70. 1974 Cri. L.J. 1379 (HP).

71. Rupan Deol Bajaj v/s K.P.S. Gill, AIR 1996 SC 309=1996 Cri. L.J. 381=1995(4)
Crimes 171=1995(3) RCR702(SC).
72. Public Prosecutor, High Court of A.P. v/s Badana Ramayya, 2004 Cri. L.J. 3510
(A.P.)
73. Ranvir Singh v/s State of Maharashtra, 1996(4) Crimes 163(SC)= 1996(11) SCC
595=1996(10) JT 19.

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Prosecutrix had made complaint to her other two companions immediately when
they came back showed she was not consenting party. Appellant had not stopped
the truck at the signal of police but had to stop because of the barrier. It is held that
even if a prosecutrix was a woman of easy virtue nevertheless she could be
forcibly raped. Generally a woman would not normally be used as a tool to
implicate somebody in a false case of rape, as it would reflect adversely on her
reputation observed in Rap Partap Case.74 Spontaneity in disclosure of incident by
prosecutrix has a greater value as res-gesta and it is not permissible for anyone to
take liberty with a girl even if she had sexual intercourse earlier. She was not a
vulnerable object or prey for being sexually assaulted by anyone as in Mohan v/s
State of MP75 and State of A.P. v/s Badana Ramayya.76 State v/s Gurmit Singh.77

G. Appreciation of Evidence - Duty of Court.

The approach required to be adopted by courts in cases of rape has to be
different. The cases are required to be dealt with utmost sensitivity, courts have to
show broader probabilities are required to be examined and the courts are not to
get swayed by minor contradictions or insignificant discrepancies which are not of
substantial character. The evidence is required to be appreciated having regard to
the background of the entire case and not in isolation. The ground realities are to
be kept in view that every defective investigation need not necessarily result in the
acquittal. In defective investigation, the only requirement is of extra caution by
courts while evaluating evidence. It would not be just to acquit the accused solely
as a result of defective investigation need not necessarily lead to rejection of the
case of prosecution when it otherwise proved78. Trial court must show careful

74. State of Haryana v/s Ram Partap, 2001(2) RCR (Criminal) 767 (P&H) (D.B.)
75. 2001(4) RCR (Criminal) 167 (M.P.).
76. 2004 Cri.L.J. 3510 (Andh.Pra.)
77. 1996(2) SCC 384: 1996 SCC (Cri.) 316: AIR 1996 SC 1393.
78. Visveswaran v/s State, 2003 Cri.L.J 2548 : 2003 (6) SCC 73 : 2003(2) BLJR(SC)
1320 : 2003 AIR (SC) 2471 : 2003(4) JT 407 : 2003(3) Supreme 706.

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attention and greater sensitivity, evidence should be appreciated on broader
probabilities and not to be carried away by insignificant contradiction79.
In State of Rajasthan v/s Om Parkash case80 the Supreme Court observed as
in child rape cases are cases of perverse lust of sex where even innocent children
are not spared in pursuit of the sexual pleasure. There cannot be anything more
obscene than this. It is crime against humanity many such cases are not even
brought to light because of social stigma attached thereto. According to some
surveys, there has been steep rise in the child rape cases. Children need special
care and protection. In such cases responsibility on the shoulder of the courts is
more enormous so as to provide proper legal protection to these children. Their
physical and mental immobility call for such protection children are the natural
resource of our country. They are country’s future. Hope of tomorrow rests on
them. In our country, a girl child is in a very vulnerable position and one of the
modes of her exploitation is rape besides other modes of sexual abuse these factors
point towards a different approach required to be adopted.
In State of H.P v/s S.K Shekari case81 Supreme Court held that during
examination of witnesses in rape case it is the duty of court to deal rape case it is
the duty of court to deal rape cases in utmost care. In this case prosecutrix is not an
intelligent girl her mother also an illiterate rustic woman. The court should not
examine their evidence with microscopic approach it would be an insult to justice
oriented judicial system and it would be totally detached from the realities of life.
In Rajendra Jawanmal Gandhi case82 the Supreme Court observed that
there is no procedure established by law governing the conduct of trial of a person
accused of an offence. A trial by press, electronic media or public agitation is very
antithesis of rule of law it can well lead to miscarriage of justice. A judge has to
guard himself against any such pressure and he is to be guided strictly by rules of

79. State of H.P V/S Mange Ram, 2000 Cri.L.J 4027 : 2000 AIR (SC) 2798 : 2000(41)
ALL Cri. C 559 : 2000 SCC (Cri.) 1331 : 2000(3) CCR 138 : 2000(3) Rec Cri.R. 752
: 2000(3) Crimes 179.
80. State of Raj. v/s Om Parkash, 2002(2) Crimes 386 (SC): 2002(5) SCC 745.
81. State of H.P v/s S.K.Shekari, 2004 AIR (SC) 4404 : 2004(4) Crimes 32.
82. State of Mah. v/s Rajendra Jawanmal Gandhi etc, AIR 1987 SC 3986.

134
law. If he finds the person guilty of an offence he is then to address himself to the
question of sentence to be awarded to him in accordance with the provisions of
law. While imparting sentence of fine and directing payment of whole or certain
portion of it to the person aggrieved, the court has also to go into the question of
damage caused to the victim and even to his family.
In State of Punjab v/s Gurmit Singh & others case83 the Hon’ble Supreme
Court observed that courts are expected to use self-restraint observation on the
character and reputation of the prosecutrix casting a stigma on the character of the
prosecutrix. The observations lack sobriety expected of a judge such like stigma
have the potential of not only discouraging an even otherwise reluctant victim of
sexual assault to bring forth complaint for trial of criminals, thereby making the
society to suffer b letting the criminal escape even a trial. The courts are expected
to use of self-restraint while recording Such findings which have larger
repercussions so far as the future of the victim of the sex crime is concerned and
even wider implications on the society as a whole, where the victim of crime is
discouraged the criminal encouraged and in turn crime gets rewarded even in
cases, unlike the present case there is some acceptable material on the record to
show that the victim was habituated to sexual intercourse, no such inference like
the victim being a girl of “loose moral character” is permissible to be drawn from
that circumstance alone. Even if the prosecutrix, in a given case, has been
promiscuous, in her sexual behaviors earlier, she has a 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 no
stigma, like the one as cost in the present case should be cast against such a witness
by the court for after all it is the accused and not the victim of sex crime who is on
trial in the court.

83. State of Punjab v/s Gurmit Singh, 1996 AIR 1987 SC 3986.

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H. Delay in lodging F.I.R and their effect.
Delay in lodging the report about the incident of rape is fully explained by
the prosecutrix then delay on that ground is accepted because of many reason in
our society like to avoid publicity, reputation of the unmarried girl and their family
to go to the police station. Delay is also conducted to the fear of losing the love and
respect of her own husband and near relatives & society. There are many cases in
which delay in lodging the FIR is not disregard the incident of rape and there is
less chances of the victim and their family members to lodge the report in order to
downgrade the reputation and respect of the family and the victim and also their
future prospectives. In Indian society no girl of a tender age and her parents would
like to jeopardize her entire future by falsely implicating a person alleging the
offence of forcible sexual intercourse. Delay in lodging first information report
cannot be used as a ritualistic formula for discarding prosecution case and doubting
its authenticity. In delay cases the duty of the court is to only see whether the delay
is satisfactory or not. In State of Punjab v/s Ram Dev Singh case84 victim is minor
girl and there is 18 days delay in lodging FIR the delay is due to the living in
conservating rural area and to illness of the prosecutrix father the other family
members did not want to create tension in the mind of unhealthy father 9of the
victim. No other person informed due to shame of sexual assault and to avoid
publicity. It is held in the case that delay in lodging the FIR and the reasons are
sufficient and were found satisfactory. In Devinder v/s State of Haryana case85 the
matter of the incident of rape is referred before the panchayat in which the victim
of rape is a married woman. The concerned panchayat is in a view that whether to
take the matter to the court or to the police or not because of the matrimonial life of
the victim. It is held that delay in lodging FIR is no effect because respect of a
married women is involved in this case. It is also held in another case86 of delay of
two days that it will not fatal the case of the victim because in this type of act the

84. State of Punjab v/s Ram Dev Singh, AIR 2004 (SC) 1290 : 2004 SCC) (Criminal
307: 2004 (1) Crimes 149 : 2004 (1) RCR (Criminal) 346 SC : 2003 Judgment
Online 1136.
85. Devinder v/s State of Haryana, 2003(4) JR(Criminal)500 (P&H): 2003(3) RCC 172.
86. Kuldip Singh v/s State of Punjab, 2003 (3)RCC 465 : 2003(3) RCR (Criminal) 455
(P&H).

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future life of victim and the reputation of the prosecutrix and other family members
of the prosecutrix is involved. In State of Himachal Pradesh v/s S.K.Shekart case87
teacher raped his student. The victim did not not disclose the incident to any body
due to threats given by accused to her. Her mother knew about the incident when
the victim girl became pregnant FIR was lodged thereafter. It is held that on the
facts of the case it was observed that testimony of prosecutrix can be acted upon
without corroboration. She categorically stated that she did not disclose the
incident earlier as she was afraid of the accused who was her teacher and who had
threatened her. Plea of accused of false implication not proved. Conviction was
held proper. In State of Rajasthan v/s N.K Case88 it was held that mere delay in
lodging the FIR cannot be a ground by itself for throwing the entire prosecution
case overboard. The court has to seek an explanation for delay and test the
truthfulness and plausibility of the reason assigned. If the delay is explained to the
satisfaction of the court it cannot be counted against the prosecution. In the instant
case prosecutrix was a married woman but her muklana ceremony had not taken
place. Muklana ceremony is rural custom prevalent in Rajasthan, where under the
bride is left with the parents after marriage having been performed and is taken
away by the husband and/or their in-laws to live with them only after lapse of time,
so the prosecutrix was a virgin prior to the commission of the crime and this fact
finds support from the medical evidence. The incident if published it may have
been an end of the marriage for the victim. The father of the victim and other
witnesses have stated that while they were prevented from doing so by the
community fellows of the accused who persuaded them not to lodge report with the
police and instead to have the matter settled by convening a panchayat of village
people. After all the family of the victim had to live in the village in spite of the
incident having taken place so, it can be said that delay in lodging the complaint
has been satisfactorily explained.

87. State of Himachal Pradesh v/s S.K.Shekart, 2004 Cri.LJ 4232(SC).

88. State of Rajasthan v/s N.K, 2000 Cri.LJ 2205 : 2000 AIR (SC) 1812 : 2000(2)
Crimes 84.

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 In Prithi Chand v/s State of H.P case89 the victim disclose the matter

immediately after the incident to the mother and other ladies, a decision was taken
to await the return of the father before deciding on the course of action on the
arrival of the father the sarpanch was contacted, who advised that the police should
be informed about the incident. The sarpanch however, stated that he would
accompany them next morning since it was already dark. The girl was taken to the
palampur police station on the next morning and the FIR was lodged. The incident
lodged on the suggestion of sarpanch of the village it is held that delay is not fatal.
In Sate of Rajasthan v/s Om Parkash case90 there was a delay of nearly 26 hours in

lodging the FIR. The offence is alleged to have taken place at about 9 a.m. on the
next day. It has been established that the father of the girl along with his brother
came back to their house at 7 O’clock in the evening. The girl was unconscious
during the day. Mother of the prosecutrix told her husband as to what had
happened to their daughter. The police station was at the distance of 15 k.m. and
no mode of conveyance was available. The delay in reporting the matter to the
police has thus been fully explained. It is held that awaiting for the elders of the
family till lodging FIR can be said to be the proper explanation of delay due to the
reputation and prestige of the family and the career and life of a young female
child is involved in such cases. In another rape case91 the complaint was lodge less

than promptly does not raise the inference that the complaint was false. The
reluctance to go to police is because of society’s attitude towards such woman, it
casts doubt and shame upon her rather then comfort and sympathetic with her.
Therefore, delay in lodging complaint in such cases does not necessarily indicate
that her version is false and no parents will set up such a case in view of social
ethos in this country92.In S.Krishna v/s state of Kamatka case93 a 17 year boy

committing rape on minor girl of 10 years. Accused and victim both of the same

89. Prithi Singh v/s State of H.P.,1989 Cri.LJ 841 : AIR (SC) 702 : 1989 SCC (Cr) 206.
90. State of Raj. v/s Om Parkash, 2002 SCC (Cri.) 1210 : AIR 2002 (SC) 2235 : 2002(5)
SCC 754.
91. Kamel Singh v/s state of M.P., 1995 AIR (SC) 2472 : 1995 (4) CCR 10.
92. State of Kamatka v/s Manjanna, 2000 AIR(SC) 2231 : 2000 (2)crimes 302.
93. S.Krishna v/s State of Kamatka, 1998 Cri.L.J 785 (Kant.).

138
village. Accused admitted his guilt in panchayat when the matter was put in
panchayat in which accused agreed to marry victim girl after her attaining
majority. Agreement as to said fact prepared later on accused refused to marry with
the victim girl. It is held that in these circumstances delay in lodging complaint is
not fatal.

In Narayan Dey v/s State of Tripura case94the accused of the minor victim
is not a stranger but her real father. The minor girl could not be taken to doctor due
to poverty of family. The victim taken to doctor by neighbours when they knew
about the incident after few days. It is held that in such circumstances delay of few
days in reporting the incident to police is not fatal. In Islam v/s State of Haryana
case95 the matter was reported to panchayat and in the failure of said the matter
told to police it is held that delay in sufficient explained, members of the family
have to decide whether to take the matter to the court or not and such like
consideration naturally cause some delay in lodging the FIR same is also held in
Cheema Rama Rao case96.

In Gang rape case97rape is committed by accused persons on minor girl of

age below 16 years with consent and this act of intercourse continued for more
than one year with the consent of victim. The matter came to the knowledge of
father of victim after long delay it is held that delay in . reporting the FIR is no
ground to give benefit to the accuse persons. In a case the prosecutrix examined
in the court and during cross examination she admitted that this incident was not
her first sexual intercourse with accused. According to medical evidence no injury
was found on private part of prosecutrix delay in lodging the FIR by father of
prosecutrix is not explained. It is held that delay of reporting the matter to police is
doubtful and the prosecutrix is cosenting party. Accused is acquitted, in another

94. Naryan Dey v/s State of Tripura, 1997 Cri.LJ 2613 (Gau.): 1997(1) Gau.LJR. 162.
95. Islam v/s State of Haryana, 2004(2)RCC 630 : 2004(1 )RCR (criminal) 895 (P&H).
96. Cheema Rama Rao v/s State of A.P., 2005(1)RCR (Criminal)560 AP.
97. Dhiuvendra & others v/s State of Rajasthan, 2002(2) RCR (Criminal) 185.
98. Mohan lal v/s State of Raj., AIR 2003 (SC) 698.

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similar case" the delay in lodging FIR is not explained, no mark of injury,
prosecutrix was habitual to intercourse, it seems to be the case of prosecution &
their delay is doubtful accused acquitted.

In Rinku v/s State of Haryana case100 there is delay of 3 days in lodging

FIR, the rape committed with unmarried daughter, mother thought about victim
marriage prospectus and the whole of the family. It is held that rape with a girl of
hardly 13/14 years and there is a delay of 3 days in lodging FIR is not fatal
moreover no mother can be so cruel as to expose her unmarried daughter with
heinous act. In Dilawar Singh v/s State of Delhi case101 the Hon’ble Supreme court
observed the delay matter as in criminal trial one of the cardinal principles for the
court is to look for plausible explanation for the delay in lodging the report. Delay
sometimes affords opportunity to the complainant to make deliberation upon the
complaint and to make embellishment or even make fabrications. Delay defects the
chance of the unsoiled and untarnished version of the case to be presented before
the court at the earliest instance. That is why, if there is delay in either coming
before the police or before the court, the court’s always view the allegation with
suspicion and look for satisfactory explanation. If no such satisfaction is formed,
the delay is treated as fatal to the prosecution case. In Thulia Kali v/s State of
Tamil Nadu case102, it was held that the delay in lodging the first information
report quite often results in embellishment as a result of after thought. On account
of delay, the report not only gets benefit of the advantage of spontaneity, but also
danger creeps in of the introduction of the coloured version, exaggerated account
or concocted story as a result of deliberation and consultation. In Ram Jag and
others v/s State of U.P. case103 the position was explained that whether the delay is
so long as to throw a cloud of suspicion on the seeds of the prosecution case must
depend upon a variety of factors which would vary from case to case. Even a long

99. Sudhanshu Shekhar Sahoo v/s State of Orissa, 2002 Judgement Online 1145.
100. Rinku v/s State of Haryana, 2005(3) RCR(Criminal) 327 (P&H).
101. Dilawar Singh v/s State of Delhi, 2007(4) LAW HERALD (SC) 2760.
102. Thulia Kali v/s State of Tamil Nadu, AIR 1973 SC 501.
103. Ram Jag and others v/s State of U.P.,AIR 1974 SC 606.

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delay can be condoned if the witnesses have no motive for implicating the accused
and/or when plaushible explanation is offered for the same. On the other hand,
prompt filing of the report is not an unmistakable guarantee of the truthfulness or
authenticity of the version of the prosecution.

I. Age of the Prosecutrix and their Proof

In rape case age of the victim of rape plays a vital/major role in order to
punish the accused. In the definition of rape the word ‘consent' is also decide in
the trial of the case during the commission of forcible sexual intercourse if the
major female does not arise any objection regarding the act and in compromise
position then there is no offence but on the other if the girl is below sixteen years
gives her consent then his consent will not save the accused from the clutches of
criminal law. In the case of rape the onus lies upon the prosecution to prove that
the sexual intercourse was without the consent or against the will of the woman. It
would not be necessary for the defence to prove that the sexual intercourse was
without the consent or against the will of the woman. It would not be necessary for
the defence to prove that the sexual intercourse was with the consent of the
woman. In rape cases medical person is required to give evidence in the court
regarding the facts observed by him at the time of issuing certificate and the
opinion so formed by him if the doctor has not brought any scientific knowledge to
bear upon his opinion as to age, his statement does not amount to legal proof. The
expert opinion of the doctor as to age is a relevant and important piece of evidence,
although it is a different matter, what weight the court will attach to it in its
assessment. The age presumed or assessed by the medical doctor is an expression
of opinion based on clinical examination. The doctor should have reasons in
support of the conclusion by an examination of teeth, height, weight etc.104 He
should place before the court an analysis of these factors showing what normally is
to be expected at the age given by him, what is the margin of error permissible and
when approximately these factors or any of them would present a different picture

104. Bernard Knight: Chapter 5, Medical Jurisprudence and Toxicology sixth edition
1992.

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so as to make out a reasonable probability that the age cannot be far removed from
the approximate age given by him. In Nathu v/s Emperor case105 the civil surgeon

merely deposed that the approximate age to the girl was 14 or 15 and that the
evidence was not sufficient to establish the case of the prosecutrix as to the age. In
many cases106 it is held that medical evidence regarding age is an estimate it does

not amount to proof it is merely an opinion. The evidence of a medical officer as to

age has greater value than that of an ordinary witness107. According to Medical
Jurisprudence108 the assessment of age prepared by the medical man on sexual

development like public hair, development of breasts in girl, voice, height,

formation of bones and teeth though it cannot be said that the opinion of a medical
expert as to age on the base of medical sciences is not admissible yet, in the
absence of any explanatory statement from the doctor as to what factors
individually or cumulatively were significant, and why, the opinion cannot carry
much weight as held in Somgir @ Mangalpuri Karibharthi case109. The

determination of the age' on tests based on physical peculiarities, where test of

ossification has not been alone, is generally not very certain. Where the opinion of
the doctor was formed on judging by the truth, appearance and voice, the court
observed that a certificate based on it was worthless as held in a case110. Where

opinion is based on particulars with regard to height, weight etc. where the
indications given by the doctor could be observed by a layman, the statement of the
doctor is no more than an opinion as held in Laimayum Tonjou v/s Manipur
Adminstration111. Sometimes the medical opinion about age may be in conflict

with other kinds of evidence, oral, documentary and circumstantial. It is held in a

105. Nathu v/s Emperor, AIR 1931 Lahore 401.

106. Nathu v/s Emperor, AIR 1931 Lahore 401 : Emperor v/s Qudrat, AIR 1939 ALL.
708 : State v/s Mst. Kala, AIR1957 H.P. 42 : Gul Mohd. v/s Crown, AIR 1951
Ajmer 68 : Bishwanath Prasad v/s King Emperor, 1948 Cr.LJ 542 : Mohd. Syedol
Arrifm v/s Yeoh Goi Gark, AIR 1961(242).
107. Nasrullah v/s Emperor, 1934 CrJL.J. 498.
108. R.Jhalla & Raju : Medical Jurisprudence Page no.164 1981 Edn.
109. Somgir @ Mangalpuri Karibharthi v/s State of Gujarat, 1966 Guj.L.R. 378.
110. Mohd. Syedol Arrifin v/s Yeoh, AIR 1916 PC 242.
111. Laimayum Tonjou v/s Manipur Adminstration, AIR 1962 Manipur 5.

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 J 1 *y
case that if the medical evidence supports the conclusions drawn from other
kinds of evidence, it is generally accepted and if the other evidence is reliable, but
inconsistent with the medical evidence, the medical evidence would be rejected as
held in Babulal case113. Age can also be assessed through ossification test in the
very young and the time of fusion of the epiphyses (separate centers of ossification
at the ends of long bones and in parts of others) with the main body of the bone
(metaphyses)114.
In Farukh v/s State of Haryana115 during the medical examination
prosecutrix stated her age 14 years. She does not told her date of birth month or
years of her age. Ossification test held and indicate her age between 15 to 17 years.
It is held by the Punjab & Haryana High Court that prosecutrix was more than 16
years on the date of occurrence.
In Kamal Kishore v/s State of H.P case116 the doctor has fixed up the age of
prosecutrix as 10 years on the date of her examination. This was testified to by the
doctor on the strength of clinical examination conducted by him but the doctor did
not conduct either ossification test or any other pathological tests to reach at least
the approximate age of the victim. It is held that doctor assessment regarding age is
based on fragile premises and same is not proper.
In State of H.P v/s S.K.Shekari case117 the radiological test has indicated
age of the victim between 15 to 16 lA years. The school records were produced to
establish that her date of birth was 10-4-1979. The relevant documents are Ex.Pw
6/A to 6/C. The High Court was of the view that these documents were not
sufficient to establish age of victim because there was another document Ex.Pw7/A
which according to the High Court did not relate to the victim merely because one
document which was produced by the prosecution did not, according to the High

112. Banwarilal v/s Mahesh, AIR 1916 PC 116.

113. State v/s Babulal, AIR 1965 Raj. 90.
114. H.W.V.Cox : Medical Jurisprudence & Toxicology.
115. Farukh v/s State of Haryana, 2005 (2) JR (Criminal) 295 (P&H).
116. Kamal Kishore v/s State of H.P.,2000 AIR (SC) 1920 : 2000(2) CRIMES 285 : 2000
SCC (Cri.) 833.
117. State of H.P v/s S.K.Shekari, 2004 AIR (SC) 4404 : 2004(4) Crimes 32 : 2004 (8)
SCC 153.

143
Court relate to the victim that was not sufficient to ignore the evidentiary value of
Ex.Pw6/A to Ex.Pw6/C. These were records regarding admission of the victim to
the school and her period of study. These documents unerringly prove that the date
of birth of the victim as per official records is as 10-4-1979 therefore, on the date
of occurrence and even when the F.I.R was lodged on 20-11-1993 she was about
14 years of age.
In Narendra Singh s/o Bahalsingh Rajnandgaon (MP) v/s State of M.P.
case father of prosecutrix not stating in his evidence the year and date of birth of
prosecutrix school admission certificate for age of prosecutrix also not reliable.
Ossification test showing that prosecutrix was between 14 to 16 years it is held that
medical opinion not corroborated by any substantial piece of evidence. Benefit of
margin of 2 years should be given to accused.
In Ram Swarup v/s State of U.P.119 the Allahabad High Court found the
testimony of prosecutrix aged about 14-15 years is reliable because of the medical
report in which is aged is 14-15 years. Accused rightly convicted. In another
case the date of birth found in school certificate and birth register is different. It
is held that both entries in said document cannot be discarded and birth entry
should be taken as conclusive evidence.
In Moola Ram v/s State of Rajasthan121 age of prosecutrix found 12years
on the basis of ossification test. Doctor who conducted test admitting that there
was margin of 2-3 years, but parents of prosecutrix themselves stating that she was
aged 16 years on date of incident. It is held that on this ground benefit of doubt
given to accused.
In State of Guj. v/s Inayathusen Mahmadmiya122 the question arises before
the Gujarat High Court regarding the dispute of age of victim. Age of victim
mentioned in birth register and medical opinion placed on record. It is held that age

118. Narendra Singh s/o Bahalsingh Rajnandgaon (MP), 1996 Cri.L.J 198 (MP): 1996
MPLJ 518: 1996 Jab.L.J 256.
119. Ram Swarup v/s State of U.P.,1999 Cri.L.J 3726 (ALL).
120. Mohandas Suryavansh v/s State of M.P.,1 999 Cri.L.J. 3451(M.P).
121. Moola Ram v/s State of Rajasthan, 2000 Cri.LJ 2506 (Raj.).
122. State of Guj. v/s Inayathusen Mahmadmiya, 1996 Cri.L.J 3225 (Guj.)

144
mentioned in birth register should be given preference. Correctness of age as per
medical opinion not certain it may vary plus or minus two years as per medical
jurisprudence. It is held in a case123 when age proof of prosecutrix is not available
in the shape of school certificate or birth certificate then medical evidence taken
into consideration. In another rape case124 school leaving certificate of prosecutrix
is tender and issuing authority who issued the certificate not examined in court. It
is held that certificate could not be read in evidence because as per section 61 of
the Indian Evidence Act contents of a document may be proved either by primary
or by secondary evidence. No doubt, the ossification test is a surer test for
determining age but court have acted upon the opinion of the doctors arrived at
without conducting an ossification test and based on other factors such as teeth
growth, pubic and auxiliary hairs, growth of the breast, height and weight of the
girl. In fixing the age of the girl all these factors are relevant consideration as held
in Dolgobinda Rath Case125.

J. Medical Aspects and Rape

(i) Introduction

In every criminal offence Medical report, Medical Legal Report (MLR),

Post Mortem Report (PMR) which is played the main role in the case of injury
through MLR and in death case through PMR of the victim who suffered the
consequences. When the victim of Rape complaint about the offence to police, the
doctor will be requested by police to examine the alleged victim and also the
accused. Such a request is officially requested and a written requisition produced
by the police, which given all the details of the alleged victim and the prosecution
version. Medical reports are admissible in the court as an evidence according to

123. Keshar Singh v/s State of Haryana, 2005(2) RCR (Criminal)933 (P&H).
124. Bhoop Singh v/s State of Haryana, 2005(3) RCR (Criminal) 64 (P&H).
125. Dolgobinda Rath v/s State, AIR 1954 Orissa 1211.

145
our legal system. Under Section 293126 the court has to accept documents issued by

any of the six officers who are mentioned as,

- Any Chemical Examiner or assistant Chemical Examiner to

Government.

- The Chief Inspector of Explosives.

- The Director, Haffkeine Institute, Bombay.

- The Director of the Central Forensic Science Laboratory or a State

Forensic Science Laboratory.

- The Serologist to the Government.

And provide in section 293 as valid evidence without examining the author
thereof. Chemical examiner without giving reason cannot be believed by the
court as held in Umakant Bajpai Case.128 The report made by the Director Finger
Print bureau can be used as evidence without examining the expert.129 Incomplete

report of blood mere stating that the blood was found on the exhibits will not be
sufficient the chemical examiner must state the number of blood stains found by
him on every exhibits and extent of each stains under they are too minute or
numerous to be described in detail.130 The report of chemical examiner is

admissible as a whole including the condition of the sample and seal and manner
of sending the sample 1982 Cri.L.J. 1197 (P&H) and where the court thinks fit it
can summon the public analyst without any application or request from the accused
as held in Shyam Grander v/s State131 and in death case the post-mortem report is

not per se admissible in evidence. Where particular weapon is stated to be the

126. Section 293: Cr. PC, 1973.

127. Visakha Agro Chemicals (P) Ltd. v/s Fertilises Inspector-cum-Assistant Director of
Agriculture (Regular), (1997) 2 Crimes 648 (AP).
128. Umakant Bajpai v/s State 1993(1) Crimes 1118 All.
129. State v/s Om Parkash AIR 1972 SC 976=1972 Cri. L.J. 606.
130. Parbhu Babaji v/s State AIR 1956 SC 51=1956 Cri. L.J. 147.
131. AIR 1961 Cal. 240=1961(1) Cri. L.J. 488 DB.

146
>
cause of injury. The court should call the medical expert to explain whether the
weapon can cause the injury in question132 further the genuineness of the report is

not disappointed it will be admissible in evidence without producing the doctor for
examination133 and without any further proof.134 In the offence of Rape the medical

opinion is adduced to establish the fact that the girl is minor, whether rape was
committed under influence of liquor, medicine or any other medicine or stupefying
or intoxicant threat by using weapon, to extent injury on private part or sexual part
of prosecutrix and that of accused, or if the death is caused by excessive force used
by the accused to the minor child.135

In criminal matters specially of sexual assault, Rape or other sexual

offences in which medical evidence may be required in the given headings related
to the victim as well as accused in order to prove the genuineness of the
prosecution version under the specified terms and necessity of the expert-

- to prove injury mentioned in MLR.

- type of injury their size and location.

- to prove post-mortem report

- to prove age in case of minority, maturity of understanding.

- to prove insanity, mental disorder.

- to prove drunkenness deli rum tremens.

- to prove virginity or otherwise of a woman

- to prove miscarriage or abortion.

132. Madhya Bharat v/s State 1957 Cri. L.J. 199 DB and AIR 1951 Pesu 111=1952 Cri.
L.J. 883.
133. S. Sadik v/s State 1981 Cri. L.J. 379=AIR 1981 AIL NOC 74 FB; K. Partap Reddy
v/s State 1985 Cri. L.J. 1446; Contre June v/s State 1986(2) Crimes 145 (Cal) &
1984 Cri. L.J. 559 Cal.
134. Siddiq v/s State 1981 Cri. L.J. 379.
135. Medical Jurisprudence: HWV Cox & Jhala and Raju: Eev Act S.45.

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 To prove medical fact in sexual offence as rape.

- Attitude of victim

o general appearance of both victim and accused

o presence and absence of injuries

o Presence of scratches on genitals area of accused and victim

o bruise or bites or injuries as breath, face and other parts of the

victim.

o Age of victim and that of accused

o Previous sexual habits of victim and accused,

o Evidence of penetration,

o If violence or threat is associated136.

- to prove identity of dead body found under suspicious circumstances

where it is difficult to decide whether the body was that of a male or a

female or of a young or old one or so.

- To prove pregnancy, child birth.

- To prove cause of death.

- To prove contents of stomach (in the dead body).

- To prove facts of pregnancy in case of death of a pregnant lady.

- To prove certificate and prescriptions etc. issued by him and so forth .

136. As reported in Medical Jurisprudence HWV Cox P, 436, Keithment P. 71.

137. As reported in Medical Jurisprudence in Jhalla and Raju P.21.

148
 Medical Report and their observation, in view of the above list, only
hearsay evidence and are not admissible unless the expert who issued it is
examined as witness138 except that of chemical analyses, but on the other non
production of medical report would not be of much consequence if other evidence
was believable.139 In a case140 Supreme Court observed that the refusal of some
government hospital doctors, particularly in rural areas, where hospital are few and
far between, to conduct any medical examination of a rape victim unless the case is
referred to them by the police would not be proper. Such a refused to conduct the
medical examination necessarily result in a delay in the ultimate examination of
the victim by which time the evidence of the rape may have been washed away by
complainant herself or be otherwise lost it is expected that the state will ensure that
such situation does not recur in future. Under the opinion of third persons when
relevant is in Sec. 45 titled as “opinion of experts”141 and prescribed when the
court has to form an opinion upon a point of foreign law or of science or art, or as
to identity of handwriting or finger impressions, the opinion upon that point of
persons specially skilled in such foreign law, science or art, or in questions an to
identity of handwriting or finger impression are relevant facts. Such persons are
called experts.

As a general rule the opinion or inferences drawn by a witness is not

relevant and admissible. The witnesses are required to state their knowledge of
facts and it is the function of the judge to form. Their conclusion or opinion on the
facts stated by the witnesses. But their cases in which the court will be unable to
form its opinion without the help of a person who have acquired special skill or

138. Sris Chandra Nandy v/s Smt. Anapuma Roy AIR 1950 Cal 173: T Humain v/s
Baswan Rai AIR 1933 Pat 1S9: Bhoomi Singh v/s Karan Singh AIR 1935 All 142:
Municipal corporation of Ahmadabad v/s G.S. Girdhari Lai AIR 1961 Guj. 196
Hussain v/s State of Uttar Pradesh AIR 1964 SC, 1625. Ayub Memoria v/s State AIR
1996 Goa (F.B): 1966 Cri. L.J. 817: Madan Gopal v/s Naval Dubey AIR 1992 SCC
(Cri.) 598.
139. Sheikh Zakir v/s State of Bihar, 1983(2) Recent CR 302 (SC).
140. State of Karnataka v/s Manjanna, AIR 2000 SC 2231.
141. Sec. 45, The Indian Evidence Act, 1872.

149
experience on a particular subject commonly known as expert under this the rule is
relaxed and the opinion of experts are made relevant and admissible.142 It was held
in Jaspal Singh Case143 that the science of identifying the thumb impression is an
exact science and does not admit any mistake or doubt under Section 45 the
evidence of foot print expert is not included even then it can be admissible and can
be acted upon if found to be reliable and corroborated from other evidence.144 The
identification of the accused by foot print or foot is not safe to be relied on because
it is not exact science and no conviction can be based on such opinion as in the
case B. Koriri v/s State.145 The value of foot print is much less trustworthy than
evidence of finger print expert.146 Where the question was that whether any or all
the injuries could be caused by the particular weapon, the weapon should be shown
to the expert so that he would be able to form his opinion as held in Kariery
Case147 decided by the Supreme Court. Where there is conflict between the
opinions of medical experts, the opinion of experts which support the version of
eye-witnesses should be accepted according to the Judgment of Supreme Court in
the Case.148 Where there is conflict between the opinion of expert and other
evidence about the age of prosecutrix the benefit doubt should go to the accused
and the age which favoured the accused should accepted.149 In the cases where the
opinion about the age when the Medical evidence about the age is based on the
ossification test and the doctor opined that the age may be 16 or 18 years with
margin of three years to any side and it is consistent with other evidence the

142. Babuli v/s State AIR 1974 SC 775.

143. Jaspal Singh v/s State AIR 1979 SC 1708=1979 Cri. L.J. 1386=1979 CAR 345=1979
SCC Cri. 320.
144. Ganesh v/s State AIR 1955 Assam 51=1955 Cri. L.J. 437.
145. 1976 Cri. L.J. 403 and AIR 1956 SC 415=1956 Cri. L.J. 805.
146. Om Parkash v/s State 1993(1) Crimes 902.
147. Kariery v/s State AIR 1976 Sc 76.
. 148. Piare Singh v/s State AIR 1977 SC 2274=1977 Cri. L.J. 1941=1977 SCC Cri. 614
and State v/s Gulzari Lai AIR 1979 Sc 1382=1979 Cri. L.J. 1057=1979 SCC Cri.
526.
149. Runk Sawroop v/s State AIR 1970 Pun 450=1970 Cri. L.J. 1383.

150
opinion should be accepted.150 When the opinion of medical experts based on
observation and not on any scientific data it cannot be relied on as proof of age.151

It is .difficult for a doctor to say with precision the age of injury at the time
of sexual intercourse. So when there is discrepancy of some hours between medical
and eye-witnesses version, it will if no consequence as the court has to make a
detailed search on the point and the opinion of the doctor should not be disbelieved
on that ground alone.152 Where there is conflict between a layman and medical
expert in that case153 it is settled law that the medical evidence should be given
weightage. Where witnesses stated that the deceased was unconscious and medical
evidence shows that the deceased was conscious and fit to make the statement the
medical evidence is to be believed. Where the doctor on the basis of smell,
unsteady gait, dilation of pupils gave the opinion that the accused was drunk the
opinion without blood or urine test will not be conclusive.154 In a rape case155 the
doctor opined on the basis of ossification test that the age of girl gave the years of
his marriage and gaps between birth of his children which showed the girl above
18 years of age, under the circumstances the opinion of the doctor was believed.
The duty of the expert is produce before the court all the material together with
reason. Which induced him to the conclusion. He should not act as a Judge on the
other court although not a expert may from its opinion by it own observation of all
the material produced before it as observe by the Supreme Court in a case titled as
State v/s Pala Ram. Evidentiary value of comparison of hairs is reliable.156 When
an expert is psychology admits in a case157 that he is not in a position to the
occurrence his opinion well only be conjecture and well not be entitled to any
weight on the other the expert must be shown that he is skilled in particular science

150. Dalip v/s State 1987 Cri. L.J.-212.

151. Nirmal Mangel v/s State 1990 Cri. LJ. 110 NOC Orissa.
152. Partap Mishra v/s State AIR 1977 SC 1307=1977 Cri. L.J. 817.
153. Jai Ram Parsad v/s State 1990(3) Crimes 168 Pat.
154. K. Jinubhai v/s State 1978 Cri. L.J. 829.
155. Mangat Ram v/s State 1987 Cri. L.J. 224.
156. Himanshu Pahari v/s State 1986 Cri. L.J. 622.
157. State v/s J.G. Maoruha AIR 1971 Goa 3=1971 Cri. L J. 36.

151
and it is than only the witness can be treated as an expert.158 In Hukkar Case159 the
victim is raped by the accused and later she was expired that case regarding the age
of victim school certificate produced in which the age of prosecutrix more than 17
years but less than 18 years according to doctor report two fingers is admitted
easily in the vagina and she was habitual to intercourse hence accused is acquitted
and age proof of parents of the victim is resoled, in another same case regarding
the age evidence of father relied and not of doctor.160 In a Case161 Medical
examination of Rape victim is conducted after the 8 hours of incident and
according to the doctor prosecutrix was habitual of sexual intercourse. No bleeding
and fresh sign of hymen tear found by doctor conviction set aside it is held that
evidence of prosecutrix and evidence of doctor cannot be reconciled under
Sec.59.162 “Proof of facts by oral evidence in which it is stated that all acts, except
the contents of documents163 may be proved by oral evidence. Under there the rule
is that the best evidence is to be produced to prove a fact in issue. Section 59 lays
down that all facts can be proved by oral evidence except the contents of any
documents. The contents of document can only be proved by producing the
document itself except where the second any evidence is allowed under Section
63(5). If a fact which was seen heard the person who had seen or heard must
depose about the same so also a fact which could be perceived should be proved by
the evidence of person who perceived the same. Ordinary the evidence of
prosecutrix must be accepted. The court must now be oblivious of the emotional

158. Central Excise Deptt. v/s Som Sundaram 1980 Cri. L.J. 533 and Balkishan v/s Radha
Devi AIR 1989 All 133.
159. Hukkar Case v/s State of Haryana 2003(4) RCC 697=2003(3) RCR (Criminal) 794
(P&H).
160. finish Lai Shah v/s State of Bihar, 2003(1) Apex CJO 173=2003(1) RCR (Criminal)
247=2002 Judgment online 1022.
161. Ashok Shamrao Thakare v/s State of Maharashtra, 2005(1) RCR (Criminal) 226
(Bombay).
162. Sec. 59. Indian Evidence Act, 1872.
163. Sec. 63. Indian Evidence Act, 1872.

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turmoil and the psychological injury that a prosecutrix suffers on being raped, as
held in State v/s CPKC Jain.164

With this background, the value of medical evidence has been considered.

(ii) Medical Examination and their Consequences

Medical examination of the prosecutrix as well as accused of Rape is the

most important supportive evidence, that decide the clear picture of the offence.
The accused person examined presence of scratches on any part of the body, on
face, hands, neck, scratches around shoulder flanks or hips where the prosecutrix
might have attempted to injure him. Notes on spots of blood or seminal stains
found on the clothes, tearings, hairs, muds, buttons, clips or any foreign presence
which might lead to the ‘indication of struggle between victim and accused must
be preserved where there is scratches on the accused with finger nails of the
victims, the nail scrapings and pieces from the victim must be kept and sent for
chemical analysis for matching the blood group of the accused. As in case of
accused examination prosecutrix examined with the above along with genital
region for swelling or bruises or any other lesion, swab from labia etc.

The physical strength of the accused is a guide in finding his possibility of

using force against the prosecutrix. In some cases hymen of the victim was
ruptured and blood oozing out of it beside chemical examination found blood
stains on the dhoti of the accused (matched), found bruise on knees, elbow and
back of the accused - upheld the crime by the accused.165 The doctor who
examined showed the hymen was tom irregularly and then was tear in the posterior
commissure of the vaginal orifice and posterior vaginal wall, vaginal admitted
index finger with difficulty - a clear proof of rape committed on 10 years old
girl.166 In Veer Bahadur Case,167 however, no external injury except in vaginal

164. 1990 Cri. L.J. 889=AIR 1990 SC 658=1990(1) Crimes 724=1990(1) SCC Cri. 550.
165. Bisrara v/s Emperor AIR 1944 Nag 363: B Panda v/s State 1997(2) Crime 401.
166. Lakshminarain v/s Narasaraoper Police Inspector 1992 Cri. LJ. 334 (AP).
167. Veer Bahadur v/s State 1995(3) Crime 181 (Del).

153
region and white discharge coming out from introitus. The hymen was lacerated
and accordingly opined that rapture of hymen on first penetration is normal but not
inevitable. However it is held that even a slight penetration of the penis within the
libia majora or vulva or pudenda of the child is sufficient to prove the offence. It
was held injury on the male organ (penis) is proved that accused was guilty of the
offence168 and examination of male organ of accused is very much essential.169

Absence of injuries as male organ when rape is committed again 10-12 years old
girl it would clearly indicate the innocence of the accused and conviction under
such circumstances is improper.170 In rape case both alleged victim and the accused

person must be examined medically to ascertain if they are infected with venereal
disease.171 In a case of rape victim vaginal canal of victim was so narrow that it did

not admit even the little finger it shown that due to tender age the hymen is
distantly placed and is above the vaginal canal and also described by the writer of
Medical Jurisprudence1'2 in a girl under 14 years the vaginal orifice is usually

small that it would hardly allow passage of the little finger. In case of Raghubir
Singh173 the hymen of the prosecutrix was raptured and there was a slight bleeding

out of the vaginal edges. Blood clot was also present and external genitals were
found to be tender and red. The vagina admitted one finger with difficulty, which
got smeared with blood. She was aged between 6 to 8 years. The case of rape was
confirmed.

In a Case174 in which accused was a Medical Officer, who confessed twice

omission of rape without rapturing the hymen which confession was not

168. Ram Kala v/s Emperor AIR 1946 All 191: 47 Cri. L.J. 611: Jagdish Prasad v/s State
1996 JCC 157. '
169. Jalal v/s Emperor AIR 1930 Lai 193: Cri. LJ. 784.
170. Rahim Beg v/s State of U.P. 1-972 Cr. LJ. 1260: AIR 1973 SC 343.
171. Anam Swain v/s State 1954 Cri. LJ. 132: State of Rajasthan v/s Raman was AIR
1951 Raj 30.
172. Modis: Medical Jurisprudence 17th Edn. at page 335.
173. State of H.P. v/s Raghubir Singh, 1993(3) Crimes 887(SC): State of HPV. Madan
Mohan, 1994(3) Crimes 111 (HP): Shajan Khan v/s State of Orissa, 1994(2) Crimes
203 (Orissa): State of UP v/s Babul Nath, 1994(3) Crimes 230 SC.
174. Madan Gopal Kakkad v/s Naval Dubey, 1992(2) Crimes 168 (SC).

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disbelieved by the High Court. The respondent was a Medical Officer who had got
the practical knowledge of the anatomy of a human being and the tender sexual
organ of a young girl and who must have been quite aware of the implication of the
confession having folly understood the meaning of the word ‘rape’. It was held that
it was not necessary to enter into any nice discussion as to how far the male organ
had entered in the valva or pudenda of the prosecutrix.

In case of Mahesh Chand, it was observed that injuries were found on

person of prosecutrix and not private parts and it cannot be concluded that
prosecutrix was consenting party. Prosecutrix corroborated by medical evidence,
statement of her husband and fact of broken bangles. Mere absence of
spermatozoa, not sufficient to cast doubt on the correctness of the prosecution case.
Victim of rape is not an accomplice. Her testimony has to be appreciated on the
principle of probabilities just as the testimony of other witness.

In Vellingiri Case175 Madras High Court observed that evidence of victim

was found cogent and reliable inspiring confidence of court giving graphic
narration of sexual violence committed on her. Medical evidence that number of
abrasions were found on different parts of body of victim corroborated ocular
evidence of victim. Considering age of victim and tradition found non-permissive
society she belonged to, minor contradiction present in evidence of other witness
not effected prosecution case.

In a Case Supreme Court dismissed the appeal of State against acquittal of

the accused. In that case Medical Evidence not shown that the prosecutrix had
suffered with any bodily injury, moreover medical evidence not supported the case
of Rape but prosecutrix stated that she suffered bodily injuries. Version of the
prosecutrix that she raised an alarm when accused entered in her house further
evidence on record show that there were children and other person near about the

175. Vellingiri v/s State, 2004 Cri. L.J. 738 (Madras).

176. State of Orissa v/s Thakara Bersa, AIR 2002 (SC) 1963=2002(4) JT 235=2002(9)
SCC 086=2002(3) RCR (Criminal) 550=2003(2) Apex CJ 063=2002 Judgments
online 1127=2002(3) JR (Criminal) 23.

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house and not responded to the alarm which shown that prosecutrix raised alaram
only after accused ran away.

In Thakara Bersa Case177 accused acquitted by the High Court on the

ground that self suffered injury by prosecutrix on her private part but in Supreme
Court it is observed that it is not justified that the prosecutrix inflict injury on her
private part to impose a false case on accused. Acquittal of accused set aside on the
ground of testimony of the prosecutrix appears truthful and trust worthy being
without any embellishments and exaggerations.

In Case of Manjare178 it was held that referral by government hospital

doctor to conduct medical examination of rape victim unless referred by the police
has been held to be improper as it may wash away vital evidence. The absence of
injuries either on the accused or on the prosecutrix shows the prosecutrix did not
resist but absence of injuries is not by itself sufficient to hold that the prosecutrix
was a consenting party. In most cases where the fear of any material or
blackmailing is present than there is less chances of injuries and accused is
punished accordingly but where the victim have a sufficient resistance and
opportunity and she remain silent then it will be treated as consenting party. The
Apex Court in Case of Devinder Singh179 observed that rape was alleged to have
been committed by five persons. On medical examination no injury was alleged to
have been committed by five persons. On medical examination no injury was
found on body of prosecutrix. No matting of public hair with discharge. No
injuries, in tenderness on genital areas. Hymen ruptured and old scars were present.
No fresh scars or tenderness found. Prosecutrix was used to sexual intercourse. It
was held that the fact that no injury was found or her body only goes to show that
the fact that no injury was found on her body only goes to shows that she did not

177. State of Kamatka v/s Mapila P.P. Soopi, AIR 2004 (SC) 85=2004 Criminal L.J.
44=2003(2) Apex CJ 685=2003 Judgments online 1122=2004(1) CCJ
291(SC)=2004(1) All India Criminal L.R. 166.
178. State of Andhra Pradesh v/s Manjare, AIR 2000 SC 2854.
179. Devinder Singh v/s State of HP, AIR 2003 SC 3365=2003 Cri. L.J. 4976=(2003) 11
SC 488=2003(4) RCR (Criminal) 363(SC).

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put up any resistance. On facts, it was held that medical evidence did not support
the prosecution case and if other evidence was believable except the non­
production of medical report then it would not be of much consequence on held in
Sheikh Zakir Case.180

In Balwant Singh gang rape case181 it was held that in the medical
examination, it is not possible for the doctor to say about the number of the person
committing rape on the victim. The report of Medical Officer, therefore, cannot be
rejected merely on the ground that from the report, it does not transpire as to the
number of the persons who committed rape on the prosecutrix.

In Bhupender Parkash Case182 victim is a school going girl of tender years

and was kept by the accused for several months and she was repeatedly subjected
to rape before she was rescued by the police, there could be hardly any possibility
of fresh injury to her private parts after the lapse of such a long time. The absence
of injury in such a case would not necessarily mean consent.

When Redness and swelling was seen by doctor on her private part accused
was rightly convicted as held in Munna Case183 and in Babajir Case184 the doctor
found one lacerated injury in then examination over the four-chette which
according to him was possible by forceful penetration of penis. It was held that
medical evidence corroborated the prosecutrix’s testimony of offence of rape and
accused was convicted further in gang rape case185 the victim was raped by five
accused person one after the another and the prosecutrix resisted all along. In the
medical examination no injury, even a scratch was found on the person of the
prosecutrix, no swelling on the vagina or labia majora and minora of the victim

180. Sheikh Zakir v/s State of Bihar, 1983(2) Recent CR 302 (SC).
181. Balwant Singh v/s State of Punjab, AIR 1987 sc 1080:1987 Cri. L.J. 971.
182. Bhupender Parkash v/s State, 1986 Cri. L.J. 9 (Delhi).
183. Munna @ Purshotam v/s State of M.P. 2000 Cri. L.J. 3594 (M.P.): 2000(4) Rec Cri.
R.485.
184. Babaji v/s State of Orissa, (1986) 62 C.L.T. 393.
.185. State of Mah. v/s Ravinder Nath, (1986) 2 Bom. C.R. 464 (DB).

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was found. It was held that medical examination of victim and their report does not
corroborate with the case history hence accused was acquitted.

A medical report is required in the court which is based on the opinion of

the Doctor or the facts observed or both and later in the evidentiary shape to
corroborate or not to corroborate regarding the offence. The calculation and
assessment of age by medical persons are based on the sexual development like
public hair, development of breast in girl, voice, height, weight, formation of bones
and teeth. Medical science has given the most reliable data that is the examination
of End of Long Bones. These ends (Epiphysis) unite with the shaft at certain ages.
The examination of elbows, shoulder, knee, wrists joints proves useful. The ends
of bones entering into formation of these joints unite with their respective shafts
around the age from 14 to 20; hence 2 years margin in assessment is always given.
The development of breasts and hair in public region and axillia and teeth helps
further. The wisdom teeth if erupted suggest complete 18 years but its absence
does not cause failure in indication of age for at 11th year-canines 12” years second
molars, and 17” to 21” years lateral 3rd molars gives by Medical Jurisprudence.186

Thus the determination of age is based on physical peculiarities and it was no more
than opinion. The opinion based on fusion of epiphysis of the bases are more
1 QA

trustworthy and if other evidence of age is wholly satisfactory, the ossification

test may be accepted as a surer ground for determination of age and m
estimating the age of person.190 The medical evidence is based on average and
cannot be correct to the day where the opinion of Doctor gives the age of girl
between 16 to 18 years and it cannot be mathematical precision as hold in Ajit
case191 even though the Doctors evidence as to age as an expert is valuable but by

186. Medical Jurisprudence: Jhalla and RajuPg. 164.

187. Emperor v/s Qudrat AIR 1939 All 708: 41 Cri. L.J. 142: 1939 All L.J. 980:
Tohanjou v/s Manipur Adm AIR 1962 Manipur 5; 1962(1) Cri. L.J. 49.
188. Khayali Ram v/s State 1979 Cri. L.J. 620; Paramjit v/s State of HP 1987. Cri. L.J.
1265.
189. M.S. Khan v/s MP 1985(1) Crime 157.
190. Taimus Ali v/s Assam 1977 Cri. L.J. NOC 243.
191. Manjit v/s State 1972 Cuttack WR 1836: 38 Cut L.T. 1238.

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itself is not sufficient to fix exact age.192 It is held193 that benefit is given to
accused only in cases where adequate and special reasons are available and it must
be disclosed in the judgment. But if medical report does not disclose any evidence
of sexual intercourse, yet even in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix, which is found to be cogent,
reliable, trustworthy and convincing has to be accepted. The trial court as well as
the High Court have recorded the finding of guilt of the accused based upon proper
appreciation of the evidence led by the prosecution in this case and find no
justified and justifiable ground to interfere with the conviction and sentence
awarded by the trial court and confirmed by the high court held in the case titled as
B.C.Deva @ Dyava v/s State of Kamatka.194

(iii) Value of Medical Aspects in Rape

The physical as well as other injuries are to be examined by the medical

depts. nearest to the victim of rape. It is mainly in the form of documentary and
oral. Documentary includes the writing in the shape of MLR, PMR, and certificate
and reports from Forensic Science Lab (FSL) by the concerned doctors and
experts, and later on it explain in the judicial court inside the witness-box. In the
rape case medical authority conducts the medical examination of the victim of rape
and the accused and also observe the age, marks of injury, maimer of rape,
resistance, stains of blood, sperms and foreign things found on body and clothes of
the victim as well as the accused person. Medical reports on pregnancy, recent
parturition, sexual assaults, common assaults etc. according to the version of the
victim which was prepared by the doctor observation and examination to all as the
doctor is concerned in the following way

The medical examination /observation report should be written as early as

possible with truthfulness and according to the medical norms and ethics it must be

192. Biswanath v/s State AIR 1948: 48 Cri. L.J. 542.

193. State of AP v/s Polamala Raju @ Rajarao 2000 Cri. L.J. 4014 (SC): 2000(3) Crimes
167 2000(3) Cur Cri. R (132): 2000 SCC (Crs). 1284: AIR.
194. B.CJDeva @ Dyava v/s State of Kamatka 2007(3) Law Herald (SC) 2309.

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observed with the short span of the time and not so long afterward that details and
signs have become forgotten or vague.

The language of the report is with in the medical terms according to the
prescribed style of preparing the e report with full details of the victim as s well as
patients about the physical sufferings and basic facts of the case.

The doctor should give relevant information in positive as well as negative

manner so that a later date it can readily be seen whether certain medical injuries
were present or were not present and also their approximate time with the looks of
the injury at that particular time.

The doctor should write their report on the printed Performa, such as in
many government medical certificates & documents they should be filled in
completely and clearly and no ambiguous terms used or parts of the form left
blank.

The doctor should give their evidence in the court boldly and according to the
reality of the examination and also the capabilities and opinions about the nature of
medical possibility.

The doctor should go to the court with their original report and show to the
presiding officer without any hesitation and carefully manner he should be well
prepared before going to the court in that he should have read all the relevant
documents. The doctor should also refresh his memory in the witness box from
such documents, as long as they have all been put in evidence.

That regarding the value and importance of the medical doctor their
evidence is an opinion who corroborates the direct evidence as held in the case195
where the Hon’ble Supreme Court observed that

195. Chiman Bhai Ukabhai v/s State of Gujarat, AIR 1983 SC 484 : 1983 Cri.LJ 822.

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 “Ordinarily, the value of medical evidence is only corroborative. It proves
that the injuries could have been caused in the manner alleged and nothing more.
The use which the defence make use of the medical evidence is to prove that the
injuries could not possibly have been caused in the manner alleged and thereby
discredit the eye witness”.

Medical aspects is not only controlled by the legislatory actions through

statute law but there is another controlling influence of medical practitioners
known as “Medical Ethics”, which is code of behavior imposed by the profession
itself and voluntarily accepted by doctors. The word ethics which means study of
character196 it is normative science of the human conduct which studies moral
judgment about conduct in the terms of right or wrong, good or bad and duty or
non-duty in the light of the supreme goal of life. Medical aspects is of a specialized
knowledge of definite department of things for example study of living beings is
known as zoology and study of plants is known as botany. It is proved knowledge
as established by the authorities which is accepted by the scholar’s, simple
knowledge is based on the personal experience it is not based with the certified
thing but science is certified if applied to the victim with courteous, sympathetic,
truly friendly and helpful manner along with the duty of care in the administration
of the treatment and examination they, therefore owe their patients the duty in
assigning supervision to the nurses or subordinate staff properly as held in
P.P.Ismail case197 and Ahluwalia case198. The duty may create vicarious liability;
one person may be liable for the wrongful acts or omissions of another199. In

196. P.Pandey : Philosophy of Ethics, 1972 p,16.

197. P.P.Ismail v/s Mrs. K.K.Radha, Delhi 377,1997 (2) CPC.
198. Harjot Ahluwalia (minor) through parents v/s Spring Meadows Hospital & others
Delhi 593,1997 (2) CPC.
199. Gold v/s Essex County Council, (1942) 2 KB 293 ; Collim v/s Hertfordshire County
Council, (1947)KB 598; Joseph v/s D.George Moongdy, AIR 1994 Kerala 289 ;
Maya Hospital v/s Sunil Tiwari, Bhopal 580 1997 (2) CPC.

161
section 53 of the act200 for the explanation the following explanation shall be
substituted, namely: -

Explanation - In the section 53 the word “examination” shall include the

examination of blood, blood stains, semen, swabs in case of sexual offences,
sputum and sweat, hair samples and finger nail clippings by the use of modem and
scientific techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case “registered
medial practitioner” means a medical practitioner who posses any medical
qualification as defined in clause (h) of section 2 of the Indian Medical Council
Act, 1956 and whose name has been entered in a state medical register.

Insertion of new section 53-A201 after the section 53 of the principal act, the
following section shall be inserted, namely:-

Examination of person accused of rape by medical practitioner-

(1) when a person is arrested on a charge of committing an offence of rape

or an attempt to commit rape and are reasonable grounds for believing
that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the government or by a local
authority and in the absence of such practitioner within the radius of
sixteen kilometers from the place where the offence had been
committed by any other registered medical practitioner, acting at the
request of a police officer not below the rank of a sub-inspector, and for
any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force
as is reasonably necessary for that purpose.

200. Sec.53: The code of criminal procedure (amendment) Act, 2005.

201. Sec.53-A: The code of criminal procedure (amendment) Act, 2005.

162
(2) The registered medical practitioner conducting such examination shall,
without delay, examine such person and prepare a report of his
examination giving the following particulars namely:-

(I) the name and address of the accused and of the person by whom he
was brought,

(II) the age of the accused,

(III) marks of injury, if any, on the person of the accused,

(IV) the description of material taken from the person of the accused for
DNA profiling,

(V) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived
at.

(4) The exact time of commencement and completion of the examination

shall also be noted in the report

(5) The registered medical practitioner shall without delay, forward the
report to the investigating officer, who shall forward it to the magistrate
referred to in clause (a) of sub-section(5) of that section”.

Insertion of new section 164- after section 164 of the principal act,
the following section202 shall be inserted namely-

Section 164-A: 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

202. Sec.l64-A : The code of criminal procedure (amendment) act,2005.

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 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 such a
practitioner, by any other registered medical practitioner, with the consent
of such woman or a person competent to give such consent of such woman
or 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 time or 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 person and prepare a report of his examination
giving the following particulars, namely

(I) the name and address of the woman and of the 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;

(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.

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 (6) The registered medical practitioner shall, without delay forward the report
to the investigation officer who shall forward to the magistrate referred to
in section 173 as part of the document referred to in clause(a) of sub­
section^) 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 purpose of this section, “examination “ Shall have the
same meanings as in section 53.

(iv) Medical evidence and the medical witness in judicial proceeding

In judicial criminal trial the evidence is described as documentary evidence

and oral evidence. It includes any proceeding in the course of which evidence is or
may legally be taken in the court where justice is to be administered. According to
the Indian Evidence Act, 1872203 the term evidence means and includes

1. All statements which the court permits or requires to be made before it by

witnesses, in relation to matters of fact under inquiry.

Such statements are called oral evidence;

2. All documents produced for the inspection of the court; such documents are
called documentary evidence. The word document means any matter expressed
or described upon any substance by means of letters, figures or marks, or by
more then one of those means, intended to be used or which may be used for
the purpose of recording that matter, e.g. - writing is a document divided into
direct evidence and circumstantial evidence. In which direct evidence relates to
the existence or non-existence of a fact or fact in issue and circumstantial
relates to the inference arrived at from the direct evidence. It was held in many

203. Sec.3: Indian Evidence Act,1872.

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 cases where the circumstantial evidence is with in the circumstance be
conclusive in nature as well the facts of the case which is in state of things or
relation of things, capable of being perceived by the senses and also depend
upon the mental condition of which any person is conscious secondly, the
conclusion of the evidence is fully proved and thirdly the chain of circumstance
must be so linked that there must not be any gap in it as held in the cases204.

The work of medical doctor in, at all the stage of observation processing of
data analysis and inference is of a highly specialized nature but it is not accepted
without legal or judicial scrutiny. It was held in the case205 that medical aspects is

related to biological science with all the variability in biological matters more so
with and it is difficult for the doctor to say with precision and exactitude about the
injury was caused during a particular time. The medical witness is there to arrive at
the correct and at the truthfulness about the duty towards the judiciary or to the
people who were faith on it. The doctor in the witness box should appear to be a
man of professional standard and integrity. The doctor should speak up in a clear
voice according to the examination and self observation, preparation is the key to
being a good medical witness and the doctor should know every thing that is in her
statement, disposition or notes before entering the witness box. A medical witness
may, while under examination refresh his memory by referring to any writing
made by him self it was held in Gogur Sheikh Case206. The witness may also refer

to any such writing made by any other person, and read by the witness within the
time aforesaid, if when he read it he knew it to be correct. There are many
circumstances like reputation of the family and other factors in which the victim of
rape examined by the doctor as soon as commission of offence. The delay in the
medical examination is prove satisfactorily to the concerned court then it will not
give much importance and condoned accordingly. In a case medical examination

204. Mahmood v/s state AIR 1976 SC 69; Kailash v/s State AIR 1979 SC 1711 ; 1979
CrLLJ 1322; State v/s Sukhpal AIR 1984 SC 207: 1984 SCC Cri. 213; Tara Devi v/s
State AIR 1991 SC 342 : 1991 CrLLJ 434.
205. Pratap Mishra v/s State of Orissa, AIR 1977 SC 1307 : 1977 Cri.L.J. 817..
206. Gofur Sheikh v/s State, 1984 Cri. L.J 559,562 (cal) (DB).

166
of prosecutrix after 3 days of rape, No semen was found in the swab or clothes of
prosecutrix. It was held that if some weakness of victim not sufficient to acquit
accused when statement of victim/prosecutrix did not suffer from any basic
infirmity from the evidence of medical men, inferences are drawn as to the truth or
otherwise of the criminal case, and truth. In this process the medical evidence plays
a very important and crucial role to continue or corroborate the case. Medical
witness is completely immune from actions for defamation for anything he says in
the witness box during trial to other witnesses. This must be so; otherwise the court
of justice would be frustrated because witnesses would hesitate to say everything
that they know for fear of some later legal action. This applies to medical witnesses
and with the provision that he tries to avoid any breach of professional secrecy, the
doctor or medical witness cannot be taken to task later for anything he may say
about a patient or his medical witness is called in as an expert he is not a witness of
fact. Medical evidence of an expert is evidence of opinion, not of fact. Where there
are alleged eye-witnesses of physical violence which is said to have caused the
hurt, the value of medical evidence by prosecution is only corroborative. It proves
that the injuries could have been caused in the manner alleged and nothing more.
The use which the defence can make of the medical evidence, or any medical
evidence which the defence might itself choose to bring, is to prove that the
injuries could not possibly have been caused in the manner alleged and thereby
discredit the eye-witnesses. Therefore, you must remember the particular point of
view that if you believe the eye witnesses, then there is no question of having it
supported by medical evidence, unless the medical evidence again in its turn goes
so far that it completely rules out all possibility that such injuries could take place
in the manner alleged by the prosecution and that is a point which you should bear
in mind, because if you accept the evidence of the eye witness, no question of
further considering the medical evidences arises at all. The only question in that
case when you consider the medical evidence is to test the eye-witnesses version as
to whether any of the particular injuries shown in the report can be caused in the

167
manner alleged by the prosecution but if you don’t believe the eyewitnesses, then
consideration of the medical evidence in any manner, becomes unnecessary.

Where the opinion of a medical witness both of whom are equally

competent to form an opinion, the court should accept the evidence of the medical
witness whose evidence is corroborated by direct evidence as held in Piara case207.
It is held in the case where there is conflict in the opinion of two medical
witnesses; the pinion of that medical witness which supports the direct evidence is
ordinarily to be accepted. Notwithstanding the conflict between the ocular
testimony of eyewitnesses and medical evidence, it would be open to the court to
accept the eyewitness account, if it is otherwise unshakable209.

The Hon’ble Supreme Court in a case210 observed: - Ordinarily, the value

of medical evidence is only corroborative. It proves that the injuries could have
been caused in the manner alleged and nothing more. The use which the defence
can make of the medical evidence is to prove that the injuries could not possibly
have been caused in the manner alleged and thereby discredit the eyewitnesses.
Unless, however, the medical evidence in its turn goes so far that it completely
rules out all possibilities whatsoever of injuries taking place in the manner alleged
by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the
ground of alleged inconsistency between it and the medical evidence.

(v) Medical evidence and its use in trial of cases:

In every case of rape medical evidence is corroborated by the victim of the

rape in criminal trial then there is less chances to give benefit of doubt to the
accused person on the other if it will not corroborate with victim evidence then the
benefit goes to accused. This is the general tendency of the judicial decision of
rape cases. In rape cases medical evidence shows the minority of the age, the

207. Piara Singh v/s State of Punjab, AIR 1977 SC 2274 ; 1977 Cri.LJ. 1941.
208. Puma Paladi v/s State AIR 1987 Cri.LJ. 1406 : 1987(2) crimes 257 (Orissa)(DB).
209. State of Mah. v/s Vittal, 1985 Cri.LJ 664 (Bom) (DB).
210. Supra

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medical opinion is tendered to establish the offence of rape. The medical evidence
adduced by the prosecution, has great value. It proves that the injuries could have
been caused in the sexual part of the body or other parts and also death could have
been caused by the injuries, so that the prosecution case being consistent with
matters verifiable by medical science, there is no reason why the eyewitnesses
should not be believed. In Mayur v/s State of Guj. case211 the Hon’ble Supreme
Court observed - we think this is not a case which should have been summarily
rejected by the learned single judge and moreover we do not think the learned
judge was right in observing that our courts have always taken the doctors as
witness o f truth. Even where a doctor has deposed in court, his evidence has got to
be appreciated like the evidence of any other witness and there is no irrebuttable
presumption that a doctor is always a witness of truth. The opinion of the doctor
who is an expert must be supported by reasons and it is the reasons which are of
importance in assessing the merit of the suggestion & opinion. In this case212 the
opinion written was in the form of a reply to certain queries made by the sub­
inspector of police. The doctor report was rejected as it did not contain reasons.
The medical evidence by the doctor must be always maintaining the highest
standard of their work and conduct213. In a case214 the prosecution had examined
medical jurist Dr. Subash Jain as PW 21 who opined during the course of his
statement on oath before the learned additional sessions judge that the injury no.l
was not sufficient in the ordinary course of nature to cause death of Kadir
Mohammed, deceased. The aforesaid statement of the doctor was only an expert
opinion and its testimonial value is subject to scrutiny pf this court, as envisaged
under section 45 read with section 51 of the Indian Evidence Act. Under section 51
of EEA it clearly provides that whenever opinion of any living person is relevant,
the grounds on which such opinion is based are also relevant which means an
expert opinion is merely an inference which draws from certain facts and its

211. Mayur v/s State of Gujarat, AIR 1983 SC 66.

212. Poleriswamt v/s State AIR 1968 Bom. 127.
213. Dr. P.C.Dikshit: Medical Jurisprudence and Toxicology, page no 74.
214. Salim v/s State of Rajasthan 1999 Cri.LJ 1419 (Rajasthan).

169
testimonial value depends on the grounds on which his opinion is based. In this
case, the medical jurist was required to disclose grounds which induces him to
come to his conclusion that injury no.l caused to the deceased was not sufficient in
the ordinary course of nature to cause death of the deceased although the stab
wound was caused on vital parts of the body of the deceased by a knife. In the
absence of any reason given by the doctor in support of his aforesaid opinion, it is
not acceptable to us and it is held to be inconclusive. It was held in a case215 that

the medical evidence on both sides is equally balanced; benefit of doubt must be
given to the accused. In such a case the supreme court refused to interfere with the
order of acquittal recorded by the high court on the other of there is deficient in
evidence than the court can come to its own conclusion216. It was repeatedly held

by supreme court in many cases that whenever it is intended to pace reliance on a

particular view taken by medical experts and their jurisprudence the said view
must be put to the doctor to assess how far the view taken by the experts apply to
the facts of the particular case217.

(vi) Medical examination corroborating rape:

Medical examination of the victim of rape is necessary in order to

corroborate with the medical knowledge and specialization during the medical
examination the medical expert know about the offence and their manner by the
prosecutrix or victim in detail. It is matter of prudence or to know the knowledge
and injuries affected the victim so that further it cannot be improved or
exaggerated in the court. In Shyama case218 medical examination shows that victim

suffered injuries to their private parts, other parts of the body, seminal stains on her
clothes and on the clothes of the accused. The injuries in private parts are lacerated

215. State v/s Gulzari lal AIR 1979 SC 1382 At p.1383.

216. Brij Bhukhan v/s State of U.P, AIR 1957 SC 474 ; U.T.Mizoram v/s Vanallawanna,
1977 Cri. L.J 1831(Gau.) (DB).
217. Bhagwandas v/s State of Rajasthan AIR 1957 SC 589; Pratap Mishra v/s State of
Orissa AIR 1977 SC 1307; State v/s Aru Pradhan, 1985 CriX.J. 961 (DB);
Mahendra Manilal Nanavati v/s Sushila Mahendra Nanavati, AIR 1965 SC 364 at
p.380.
218. Shyama v/s State of Raj., 1977 Raj.L.W 146 (152) : 1977 Cr.L.R. (Raj.) 392.

170
labia minora and vaginal wall near the orifice, recent tears of hymen with bleeding
edges, coupled with definite opinion of recent penetration which could be male
organ (penis), corroborate the testimony of the victim and it is held that she had
been raped.'

In state of Orissa v/s Thakara Bersa case219 the accused take the defense in
high court that the injury suffered by the victim on her private part is self suffered
on this ground accused acquitted by the high court but in supreme court it is
observed that no evidence is present in the case which shows that the prosecutrix
was a woman of easy virtue and it is not justified that the prosecutrix inflict injury
on her private part to impose a false case on accused. It is held that when the
testimony of the prosecutrix appears truthful and trustworthy being without any
embellishment and exaggerations and prosecutrix is also corroborated by her
immediate and subsequent conduct as also the medical evidence. In Bishram v/s
Emperor case220 the medical examination of the victim and their report on the
young girl of 10 years was found with redness in the vaginal opening and there was
a little white discharge on labia majora, and hymen was ruptured, which was signs
of recent sexual intercourse. In Nathu case221 it was found that a girl had the
hymen ruptured and blood oozing from it, and the chemical examiner found blood
stains on the dhoti of the accused, and the doctor found bruises on the knees, elbow
and back of the accused. In Boya Chinnappa case222 a girl of 10 years had
contusion on the inner aspect of both thighs, hymen tom, some slight blood
discharge from the vagina, swelling over the labia majora and the vagina admitted
a finger indicating that there was forced penetration of penis. In Ghanshyam
Mishra case223 a girl of 10 years of age, had recent tear on hymen 1/5” long
posteriorly with braising of the commissure, and the genitals were extremely

219. State of Orissa v/s thakara Bersa, AIR 2002 (SC) 1963 : 2002 (9)SCC 06 : 2002 (3)
Scale 570.
220. Bishram v/s Emperor, AIR 1944 Nag. 363 : 1944 Nag.L.J.406.
221. Nathu v/s State, AIR 1951 Ajmer 60 : 52 Cri.LJ 584.
222. Boya Chinnapa v/s State, AIR1951 Mad. 760 : 52 Cri.LJ 718(2).
223. Ghanshyam Mishra v/s State, AIR 1957 orissa 78 : 1957 Cr.LJ 469

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tender, while the accused had a linear abrasion of the stain 1//2” long inside the
prepuce with an abrasion on the back of the left thumb, both caused by finger nails.
In Dalchand’s case224 a girl aged 5 years was found to have has whole of the
hymen lacerated and bleeding on touch, and there was a tear from 6 o’clock
direction of the hymen, l”xl/3” right upon the anal orifice. On opening the tear, it
was full of faecal matter, on further examination there was a tear 1/3” in rectal
wall. In Manga case225 it was found that the hymen was ruptured and tom and
though there was ruptured and tom, and though there was no swelling, redness as
inflammation around the bruises, but a portion of the swab from the vagina was
found by chemical examine to contain seminal stain, and

The salwar was found to be blood stained. In R,K.Agarwal case226 the

medical examination of the accused aged 65 years charged for raping 6 years old
girl, blood was found on his genitals, blood stains on his clothes, spermatozoa in
his genitals which corroborate the act of rape. In Babaji case227 the doctor found
one lacerated injury irregularly situated over the four-chette which according to
him was possible by forceful penetration of penis. It was held that medical
evidence corroborated the prosecutrix testimony of rape. The accused was
convicted on charge of rape. In Damburce Naik case228 victim is kidnapped into
forest by the accused persons though she had opportunity to see them, though later
her eyes were closed with a piece of cloth. When she was made to lie down on the
ground at the threat of her life and gang rape was committed, she was absolutely
helpless. The medical evidence amply corroborate that she had injuries on her
private parts and so there is yet enough resistance put up by her to the gang rape
committed one after the another. In this case it is held that offence committed in
broad day time and medical evidence amply corroborates that she had injuries on

224. Dalchand v/s State, AIR 1969, Allahabad 216: 1969 Cr.LJ 585.
225. Manga v/s State, AIR 1979 SC 1194 : 1979 Cr.L.J 939.
226. R.K.Agarwal v/s State, AIR1976 SC 1774 : 1976 Cr.L.J 1376 : 1976 SCC (Cr) 244.
227. Babaji v/s State, 1986 62 C.L.T. 393.
228. State of Orissa v/s Damburce Naiko & other, 1992 AIR (SC) 1161: 1992 (2) CCR
18.

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her private parts. The judgments of the high court and the order of acquittal of the
respondents are set aside. The judgments and conviction and sentence recorded by
the trial court and affirmed by the sessions courts are restored. In Balwant Singh
case the medical report support the case of prosecutrix and also corroborate the
evidence. The hymen was tom and the edges of the tear were red and painful.
There were abrasions on the right breast. She complained of pain in both legs and
back of neck. The high court has rightly observed that these are the indication of
first sexual intercourse. The accused were four in number it cannot be said that
whenever resistance is offered there must be some injury on the body of victim. In
Raju case the medical evidence support the testimony of victim that she was
raped in the previous night. The doctor has found that her hymen was ruptured
recently and was bleeding. Some injuries on her private parts were also noted by
the doctor. In State of U.P v/s Babul Nath case231 the medical evidence shows that
the hymen of the prosecutrix was completely tom ad blood coming out of vagina
and declare as to be case of rape further during suggestion he conceded that this
injury could be caused by a piece of glass, no glass found at place of incident. In
these circumstances the injury corroborate by the doctor is much weight and that
accused is guilty of rape.

In Jagan Nath case232 it is held that the law regards the credibility of the
testimony of the prosecutrix in case of sexual offences, the question of acting upon
the same as a basis for finding of a guilt and the necessity of corroboration the
same, may be stated as follows

(i) there is no rule of law that corroboration is essential before there can be
a conviction solely on the testimony of the prosecutrix, but as a matter
of pmdence, the necessity of corroboration must be present to the mind
of the judge.

229. Balwant singh v/s State, 1987 AIR(SC)1080: 1987(1) Crimes 910.
230. Raju v/s State of Kamatka, 1994 AIR(SC) 222 : 1994(1) Crime 156.
231. State of U.P v/s Babul Nath,1995(l)Recent CR 465 (SC).
232. Jagan Nath v/s State of Haryana, 1978 CLT 183.

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 (ii) There may be circumstances in a given case which might make it safe
to dispense with such corroboration.

(iii) On the other hand, there may be factors in a case tending to show that
the testimony of the prosecutrix suffers from the information or defects
in a manner so as to make it either unsafe or impossible to base a
finding of guilt on the same. Some of the salient factors of this type
may briefly be stated as follows

(a) Circumstances showing on the part of the prosecutrix an animus against the
accused.

(b) Where the question of want of consent is material, circumstances tending to

show consent e.g. absence of material showing an attempt at resistance;
absence of any mark of struggle.

(c) Attempt a improvement or exaggeration in the version or attempted by the

prosecution.

(d) Element of artificiality or unnaturalness in the story as attempted by the

prosecutrix.

(e) Conduct on the part of the prosecutrix, inconsistency with the credibility of
the version. E.g. omission to make a disclosure at the earliest opportunity.

(f) Absence of signs of rape in the findings of the medical examination or on

chemical analysis.

In Zamir Ahmed case233 it is held that prosecutrix is not an accomplice within

meaning of section 133 of evidence act. She is a competent witness and her
statement does not require corroboration within in the meaning of section 114 of
Evidence act, under the law of evidence it does not require any particular number
of witnesses to be examined in proof of a given fact, however faced with the

233. Zamir Ahmed v/s State, 1996 (1) CCC 535.

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testimony of a single witness, the curt may classify the oral testimony of a single
witness, the court may classify the oral testimony in to three categories, namely:

(a) wholly reliable

(b) wholly unreliable, and

(c) Neither wholly nor wholly unreliable.

In the first two categories there may be no difficulty in accepting or

discarding the testimony of the single witness. The difficulty arises in the third
category of cases. The court as to be depend and has to look for corroboration in
material particulars by reliable testimony, direct or circumstantial, before acting
upon testimony of a single witness as held in Lallu Manjhi case234.

Keeping in view the medical evidence which shows that the victim of rape
had been used to sexual intercourse, in order t accept her statement that she was
compelled, threatened or otherwise induced to go with the accused person be
corroborated with some medical or material particular from some independent
source ad her bare statement cannot be considered sufficient to sustain the
conviction of accused as held in Ram Murti case235.

As a rule of prudence, the courts should normally look for some

corroboration of the testimony of the victim only in order to satisfy itself that she is
telling the truth and that a person has not been falsely implicated. The view that, as
a matter of law, no conviction without corroboration was possible has not been
accepted. The only rule of law is the rule of prudence namely the need of
corroboration should be present in the mind of the judge. There is no rule of
practice that there must in every case, required to be corroborated with the
circumstances of each case and also according to the particular circumstance of the
offence with which a person is charged.

234. Lallu Manjhi v/s State of Jharkhand, AIR 2003 SC 854.

235. Ram Murti v/s State of Haryana, 1970 (3)SCC 21.

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 (vii) Medical Examination not corroborating with rape:

Some cases in which medical examination is not corroborating with the

offence of rape, in Ganga Ram case236 the medical report showed that there were to

external marks of injury, but the hymen was red and inflamed and tom posteriorly
with blood coming out from the tom part of it, but according to the medical
opinion such injuries could have been caused also by insertion of a finger, stick or
some other foreign body, the accused was acquitted as the medical opinion did not
corroborate the story of rape. In partap Mishra case237 the prosecutrix is a pregnant

lady, was alleged to have been raped by three persons, successively one after the
other, with force and violence the abortion which should have been immediate,
however took place after four or five days, hence it does not corroborate rape. In
Ravinder Nath case238 the prosecution story was that the prosecutrix was raped by

five accused persons one after another the prosecutrix resisted all along. In the
medical examination no injury even a small scratch was found on the person of the
prosecutrix, no swelling on the vagina or labia majora and minora of the
prosecutrix was found. It was held that the medical evidence did not corroborate
the prosecution case. The accused were acquitted of the charge of rape. In Vipin
Kr. v/s State of Haryana case239 the medical examination of the victim shows no

external mark of injury in all over her body and on the vulva, the hymen showed
old healed tears and moist and the medical evidence showed that the prosecutrix
was about 17 years old, the accused was acquitted of the charge of rape. In the
cases240 of rape semen stains were found on the clothes of the victim as well as on

the accused and it cannot be said that the semen stains were as a result of discharge

236. Ganga Ram v/s Crown, AIR-1950 Nagpur 9:51 Cri. L.J. 244.
237. Pratp Mishra v/s State of Orissa, AIR 1977 SC 1307.

238. State v/s Ravinder Nath, 1986 (2) Bom.C.R. 464 (DB).
239. Vipin Kumar v/s State of Haryana, 1985(1) Crimes 105 (P&H).
240. State of Rajasthan v/s Jeeya, 1985 1 crimes Raj. 313 (DB); Jhadu Gonda v/s State of
Orissa, 1985 2 crimes 986 (Orissa); Jagan nath v/s State 1952 Cri.LJ. 1200;
karichippa v/s State, AIR 1942 Mad. 285; Hamath v/s State, AIR 1952 Ajmer 49.

176
while committing rape especially when the prosecutrix has said that she could not
say whether the semen was discharged or not.

In Joharlal Das v/s State of Orissa case241 the doctor who examined the

accused has stated that he found only two pin-head abrasion on the genital of the
accused and on examination he opined that he could not find any recent sign of
sexual intercourse and they also added that there was no such signs of having
intercourse with in one hour of his examination however to a court question the
doctor stated that as a result of forcible sexual intercourse these abrasions can be
possible. We are unable to see that as a result of forcible sexual intercourse those
abrasions can be possible. We are unable to see as to how this evidence, in any
manner, is helpful to the prosecution. The doctor stated that he could not find any
sign of sexual intercourse at least within one hour of his examination then it is only
a matter of conjectures as to when the accused had any intercourse. The accused is
a man aged 57 years and it is not as if he was not used to sexual intercourse. In any
event the prosecution has not established that the accused had an intercourse on the
day of the occurrence than the presence of blood in the nail clippings and on the
under pent does not also manner with the alleged offences. The accused also had
given an explanation namely that his gums were bleeding and in wiping out the
same he got there blood stains even otherwise having given our earnest
consideration, we are not able to say that this last circumstances coupled with the
circumstances of the last company of the accused. It is held that on the basis of no
conclusion opinion about recent signs of sexual intercourse, presence of blood in
the male clipping which was explained by the accused does not connect him with
the offence at this juncture the court has to be watchful and avoid the danger of
allowing the suspicion to take the place of legal proof for sometimes unconsciously
it may happen to be a short step between moral certainty and the legal proof. At
times it can be a case of ‘may be true’ and ‘must be true’ and the same divides
conjectures from sure conclusions. The least that can be said in this case is that at

241. Joharlal Das v/s State of Orissa, 1991 AIR (SC) 1388 :1991 (2) Crimes 268.

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least there is a reasonable doubt about the guilt of the accused and the benefit of
the same should go to him. In Gurjinder case242the allegations made by the

prosecutrix is that when she was opening string of her salwar to answer the call of
nature, accused came and caught hold of her from behind, closed her mouth and
committed forcible rape on her. Statement of prosecutrix is not found convincing it
is neither corroborated with medical evidence nor with statements of other
witnesses. Her statement found contradictory on all material points. It is held that
defense plea of false implication found probable and appearing to be truthful and
accepted. In Ashok Shamrao Thakare case243 the victim of the rape is medically

examined after 8 hours of the incident, according to the doctor prosecutrix was
habitual of sexual intercourse, no bleeding and fresh signs of hymen tear found by
the doctor. It is held in the case evidence of prosecutrix and evidence of doctor
cannot be reconciled. The conviction of the accused is set aside.

(viii) Delay n Medical Examination and their effect:

In rape cases delay of medical examination is due to many reasons in the

way of absence of senior member of the family, or male person, permutation &
honor of the family, illiteracy, backwardness, threatened by the accused or in cases
where the accused is the near relative or care taker of the victim, victim may b in
traumatic state of mind, and others in which the delay is caused. The main purpose
of medical examination of the rape victim and their value is depend upon case to
case, the basic fact of the law is to provide the version of the victim and their
harassment with the signs and other things corroborated by the medical expert. In
Farukh case244 the medical examination of the prosecutrix after 3 days of the rape

incident. No semen was found in the swab or clothes of the prosecutrix., it is held
that delay kin medical examination is not to disbelieve the prosecution story

242. Gurjinder Singh v/s State of Punjab, 1998 Cri.lJ 710 (P&H) : 1998 (2) Rec Cri.R
178.
243. Ashok Shamrao Thakare v/s State of Mah., 2005(1) RCR(criminal) 226 Bombay.
244. Farukh v/s State of Haryana 2005(2)JR(criminal)295 (P&H):2005(2) RCR
(Criminal) 211 (P&H).

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because prosecutrix was examined 3 days after incident moreover, some weakness
of prosecutrix not sufficient to acquit accused when statement of prosecutrix did
not suffer form any basic infirmity. In Zosanglina v/s State of Mizoram 245case
accused committed rape on minor girl. Victim did not report the incident to her
parents due to face of accused, after her mother came to know of incident she
approached women organization and matter was brought to notice of police. It is
held mere delay in lodging FIR would not be a ground for discarding entire
prosecution case. Victim was examined by doctor after three months from date of
incident. Medical evidence supported factum of rape on her. Evidence showed that
accused committed rape on victim conviction of the accused was held proper. In
Sudhanshu Sekhar Sahoo v/s State of Orissa case246 the Hon’ble Supreme Court
observed that in view of the social conditions in India, there may be delay in
lodging FIR. Rape victim may think serious before giving the information to the
police about rape. Though the delay as such is not serious, but while considering
broad probabilities of the case, the delay in giving the information to the police
assumes some importance. Conviction can be solely based on the evidence of the
victim, provided such evidence inspires confidence in the mind of the court. The
victim is not treated as accomplice, but could only be characterized as injured
witness.

It is also reasonable to assume that no woman would falsely implicate a

person in sexual offence as the honor and prestige of that woman also would be at
stake. In that case the accused was acquitted on the grounds that version of
prosecutrix aged 29 years was that she was virgin but medical evidence showed
that she was.habitual to sex. No marks of injury or violence on her body. No stains
of semen on her clothes and there was delay of 2 days in lodging FIR. In Dr.
S.P.Kohli v/s The High Court of Punjab & Haryana case247 the Hon’ble Supreme

245. Zosanglina v/s State of Mizoram, 2005 Cri.LJ. 1057.

52. Sudhanshu Sekhar Sahoo v/s State of Orissa',AIR 2003 SC 2136 : 2003 (1) RCR
(criminal) 447 SC.
247. S.P.Kohli v/s The High Court of Punjab & Haryana, 1978 AIR (SC) 1753 : 1979
SCC(Cr) 252.

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court held that delay in examination of penis (male organ) after 24 hours of
performance of sexual intercourse, smegma looses all its importance.

In Vimal Suresh Kamble v/s Chaluverapinake case248 the Hon’ble court

observed that prosecutrix was domestic servant of accused. Occurrence took place
on Sunday afternoon. No residents of locality heard cries of prosecutrix when she
was raped. In the circumstances of the case, the court acquitted the accused on the
following grounds:-

Prosecutrix took bath after incident and caused disappearance of evidence.

Prosecutrix remained in flats for 2 Vz hours but did not disclose to anybody.

No injury on person of prosecutrix.

Prosecutrix attended t her job as usual.

FIR lodged after 26 hours of incident.

Evidence of prosecutrix did not inspire confidence.

In State of Maharastra v/s Suresh Nivrutti Bhusare others case249 there is

delay in medical examination of 2 Vz days between the time of incident and
medical examination of prosecutrix, during these period traces of rape had been
disappeared. Prosecutrix was a married lady she was bound to be used to sexual
intercourse. It is held that in such a case version of prosecutrix that she was raped
can not be said to be disproved due to lack of medical evidence.

In State of Karnataka v/s Manjana case250 medical examination is not

conducting on the ground that case was not referred by police. The refusal of some

248. Vimal Suresh Kamble v/s Chaluverapinake ,AIR 2003 SC 818 : 2003 Cri.LJ 910 :
2003(1) RCR criminal 39 (SC).
249. State of Maharastra v/s Suresh Nivrutti Bhusare others, 1997 Cri.LJ 2003 (Bom.) :
1997(2) Crimes 257
250. State of Karnataka v/s Manjana , 2000 Cri.LJ 3471 : 2000 AIR (SC) 2231 : 2000(2)
CRIMES 302

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government hospital doctors, particularly in rural areas, where hospitals are few ad
far between, to conduct any medical examination of rape victim unless the case of
rape is referred to them by the police is snot proper such a refusal to conduct the
medical examination necessarily results in a delay in the ultimate examination of
the victim, by which time the evidence of the rape may have been washed away to
complainant herself or be otherwise lost. It is expected that the stat/ appellant will
ensure that such situation does not recur in future.

K. Procedure Followed by Police:

(i) Introduction

When the offence of rape is committed the victim and their care taker went
to the police in order to punish the accused accordingly in the way of complaint.
Complaint means any allegation made orally or in writing to magistrate, with a
view to his taking action under the law whether known or unknown has committed
an offence. A complaint need not set out all the facts on which the accused is being
charged but it must contain statement of facts relied on as constituting the offence
in ordinary and concise language. It was held in a case251 that an affidavit

containing allegation of commission of an offence amounts to a complaint and the

court is justified in taking cognizance of the offence. A report mad by a police
officer in a case which discloses after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint and the police officer by
whom such report is made shall be deemed to be the complainant under section
2(d) Cr.P.C. a complaint may become first information report (F.I.R). It contains
the early information of the alleged offence and to record the same before it is
forgotten. The first information of recorded as directed by section 154 Cr.P.C at
the time it is made, is of considerable value at the trial because it shows on what
materials the investigation commenced and what was the story then told as held in

251. Pakirappa v/s B.B Goudara, 1992 Cr. L.J 3969 (Kant.).

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Md.Zaman case252. It is one of the mode by which a person aggrieved may put the
criminal law into motion, the word ‘first’ has not been used in the section though
the information is called the first information report.. The purpose of the giving
F.I.R mainly is to set the law in motion. It need not contain each and every minute
incident that occurred either prior to or subsequent to the offence. In Markanada
Naik case it was held that non-specification of the assaults and omission to state
about the injuries sustained by the caused in the FIR cannot b e considered material
and fatal unless the omission is vital and relates to material aspects. It was held in a
case"54 that FIR is not a substantive piece of evidence and can be used to
corroborate or contradict the statement of he maker thereof FIR can be used to test
the measure of trustworthiness of the prosecution story as a whole. In Jayantibhai
case255 it was held that FIR is a public document and when application is made by
accused for a certified copy of the document, the court to which it is forwarded
should give certified copy of the FIR. Non-recording of his substance of the FIR in
the daily diary is no reason to throw out the FIR. Whether a particular piece of
information should be treated as FIR or not depends upon the facts and
circumstances of each case. If any information disclosing a cognizable offence is
laid before an officer in charge of a police station, he has no option but to enter the
substance thereof in the prescribed form. The delay in the FIR reaching the
magistrate on account of negligence on the part of the police cannot affect the
prosecution case as held in Atmendra case . When a police officer superior to the
officer-in-charge of the police station, receives information on phone, rushes to the
spot, records statement of a witness, takes his thumb-mark and send it to the police
station, this statement becomes FIR. The answer to the question whether the FIR in
a given case has been lodged belatedly or not is always a question effect and has to
be answered bearing in mind the facts of the case in question and also the

252. Md.Zaman v/s Sher Muhammed, AIR 1933 Pesh. 43.

253. MarkandaNaik v/s State, 1993 Cri.L.J 3328 (Orrisa).
254. Gulshan Kr. v/s State, 1993 Cri.LJ.1343 (P&H).
255. Jayantibhai Lalubhai Patel v/s State, 1992 Cri.LJ 2377 (Gujarat).
256. State of kamt. v/s Atmendra Ganpati Hegde, 1992 Cri.L.J 2809 (Kar).

182
explanation furnished by the prosecution in case there is some delay in its being
lodged. There cane be no mathematical computation of the time taken in the
lodging of the FIR what the court has to examine is whether the delay in ordinate
and whether any cogent explanation is forthcoming is case it is so, some delay in
the lodging of the FIR is only natural and would not detract from the value to be
attached to it. A little delay is sometimes bound to be there as held in Koli case257

and on the other it is well stand that delay simplicitor on in the lodging of a FIR in
a rape case is not material as held in a case258.

(ii) Value of First Information Report:

FIR is the first information of an occurrence or transaction in the point of

time which reaches the authority competent to investigate the case. It is hot an
encyclopedia of the entire case and is even not a substantive piece of evidence. It
has value only for the purpose of corroborating or contradicting the maker as held
in a case259. FIR can be used to discredit the testimony of the maker and the

prosecution case cannot be thrown out merely on the ground that entirely different
version is given therein by its maker. The purpose of the FIR mainly is to set the
law in action. It need not contain each and every minute incident that occurred
either prior to or subsequent to the offence. It can be used to test the measure or
trustworthiness of the prosecution story as a whole. The section 154 Cr.P.C260

provides for the recording of the first information which is as under:-

1. Every information relating to the commission of a cognizable offence, If

given orally to an officer in charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant and
every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof

257. State of Maharashtra v/s Joseph Mingal Koli, (1997) 2 crimes 228(Bom).
258. State of Maharashtra v/s Suresh Nivrutti Bhusare, (1997) 2 crimes 257(Bom).
259. Ram Narian v/s State, 1993 Cri.LJ 1343 (P&H).
260. Section 154: Cr.P.C.

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 shall be entered in a book to be kept by such officer in such form as the
state government may prescribe in this behalf.

2. A copy of the information is recorded under sub-section (1) shall be given

forthwith, free of cost, to the informant.

3. Any person, aggrieved by a refusal on the part of an officer in charge of a

police station to record the information referred to in sub-section (1) may
send the substance of such information, in writing and by post, to the
superintendent of police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either investigate
the case himself or direct and investigate the case himself or direct an
investigation to be made by any police officer subordinate to him, in the
manner provided by this code, and such officer shall have all the powers of
an officer in charge of the police station in relation to that offence. A
magistrate acts on a complaint because the complainant has asked him to
act but in FIR a magistrate acts on an information on his own initiation and
it cannot become complaint.

(iii) Case Diary

The case diary is only a record of day to day investigation of the

investigating officer to ascertain the statement ascertained through the
investigation. It has been provided in section 172, Cr.P.C261. as -

Diary of proceeding in investigation-

1. Every police officer making an investigation under this chapter shall day by
day enter his proceeding in the investigation in a diary, setting forth the
time at which the information reached him, the time at which he began and
closed his investigation, the place or places visited by him, and a statement
of the circumstances ascertained through his investigation.

261. Section 172 : Cr.P.C.

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2. Any criminal court may send for the police diaries of a case under inquiry
or trial in such court, and may use such diaries, not as evidence in the case
but to aid it in such inquiry or trial.

3. Neither the accused nor his agents shall be entitled to call for such diaries
nor shall he or they be entitled to see them merely because they are referred
to by the court; but, if they are used by the police officer who made them to
refresh his memory, or if the court uses them for the purpose of
contradicting such police officer, the provision of section 161 or section
145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall
apply.

A police diary may be an official document, and the entries therein are
worth what they are, but they cannot surely be accepted to be absolutely correct for
all purposes, in the absence of any definite proof. Entries of the police diary are
neither substantive nor corroboration evidence as held in a case262. It is the court

alone which is entitled to use the special diary. Neither the accused nor his agent is
entitled under section 172 of the code to see the special diary for any purpose. The
accused can only see the diary if it is used by the police officer to refresh his
memory or if the court uses it to contradict the police officer. It may be used by the
court for the following purposes:-

It is used to aid the court in trial as it shown when the investigation began,
when it was closed, places visited and the circumstance ascertained in
investigation. Thus, it enables the court to see the information recorded from day to
day.

Case diary can be used for the purpose of clearing up obscurities in the
evidence so as to bring out relevant facts in the interest of a fair trial.

262. Brahmadeo Hazra v/s State of Bihar, 1988 Cr.L.J. 734(Pat.).

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 It enables the court to make a thorough enquiry on all material points by
eliciting in the examination of witnesses, and especially of police witnesses, the
real facts of the case.

The diary may be used by the court in enquiries or trials as suggesting

means of further elucidating points which need clearing up and which are material
for doing justice between prosecution and the accused.

Out of the diary, the court should discover out any matter which is
important and then call for the necessary witnesses or documents to prove that
matter. The court should than deal with the case on all the evidence.

It was held in Bhagwant Singh Case263 that the maintenance of a police

ease diary not only does not credit to those responsible for maintain it but defeats
the very purpose for which it is required to be maintained. The entries in a police
case diary should be made with promptness, in sufficient details, mentioning all
significant facts, in careful chronological order and with complete Objectivity. The
importance of the especial diaries or case diaries under section 172 is that the court
before when a case comes for investigation or trial should have the means of
ascertaining what was the information true, false or misleading which was obtained
from day-to-day by the police officer who was investigating the case and what
were the lines of investigation upon which the police officer acted. It is very
essential for criminal trials, though it is not evidence against the accused, therefore
it should be properly kept in the manner provided by the code. The court is entitled
for perusal to enable it to find out if the investigation had been conducted on the
right lines so that appropriate directions, if need be given and may also provide
materials showing the necessity to summon witnesses not mentioned in the list
supplied by the prosecution or to bring on record other relevant material which is

263. Bhagwant Singh v/s Comm. Of Police, AIR 1983 SC 826.

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 «

in the opinion of the court will help it to arrive at a proper decision in terms of
sec. 172 (3) of the code as held in a case264.

(iv) Report of Police on Completion of investigation:

After completing the investigation of a criminal case police prepare a

completion report under sec. 173 of Cr.P.C. which is as under:-

(1) Every investigation under this chapter shall be completed without

unnecessary delay.

(2) (i) As soon as sit is completed, the officer in charge of the police station
shall forward to a magistrate empowered to take cognizance of the offence
on a police report, a report in the form prescribed by the government,
stating -

(a) The names of the parties;

(b) The nature of the information;
(c) The names of the person who appear to be acquainted with the
circumstances of the case;
(d) Whether any offence appears to have been committed and, if so, by
whom;
(e) Whether the accused has been arrested;
(f) Whether he has been released on his bond and, if so, whether with or
without sureties;
(g) Whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed
by the state government, the action taken by him, to the person, if any whom
the information relating to the commission of the offence was first given.

264. State v/s P.P Sharma, JT(1991)2 SC147.

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(3) Where a superior officer of police has been appointed under section 158,
the report, shall, in any case in which the state government by general or
special order so directs, be submitted through that officer, ad he may,
pending the orders of the magistrate direct the officer in charge of the
police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the
police officer shall forward to the magistrate along with the report: -

(a) All documents or relevant extracts there of on which the prosecution

proposes to rely other then those already sent to the magistrate during
investigation.
(b) The statements recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not
relevant to the subject-matter of the proceeding or that its disclosure to the
accused is not essential in the interests of justice and in inexpedient in the
public interest, he shall indicate that part of the statement and append a note
requesting the magistrate to exclude that part form the copied to be granted
the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do,
he may furnish to the accused copies of all or any of the documents referred
to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in

respect of an offence after a report under sub-section(2) has been forwarded
to the magistrate and, where upon such investigation, the officer in charge

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 of the police station obtain further evidence, oral or documentary, he shall
forward to the magistrate a further report or reports regarding such
evidence in the form prescribed; and the provision of sub-sections(2) to (6)
shall, as far as may be, apply in relation to such report or reports as they
apply in relation to a report forwarded under sub-section(2).

(9) The police report on completion of investigation is a conclusion that an

investigating officer draws on the basis of materials collected during
investigation and such conclusion can only form the basis of a competent
court to take cognizance upon the offence under section 190(1) (b) of the
Cr.P.C. and to proceed with the case for trial, and it cannot rely on the
investigation or the result thereof. It is held in a case265 that power of police
to conduct further investigation, even after laying final report is recognized
under section 173(8) of Cr.P.C. it is restricted under section 198(6) Cr.P.C.
to take cognizance in rape case which is, as under: -

No court shall take cognizance of an offence under section 376 of the

Indian penal code (45 of 1860), where such offence consists of sexual-
intercourse by a man with his own wife being fifteen years of age, if more than
one year has elapsed form the date of the commission of the offence .The
offence is triable by session court and in every trail before a court of session,
the prosecution shall be conducted by a police prosecutor. The session
trial/case is committed by the 111 aqua magistrate of the concerned jurisdiction
in the area where the offence is taken place. The word trial has not been
defined in the code. It is the conclusion of questions in issue in a legal
proceeding by a competent tribunal. It is a judicial proceeding which ends in
conviction or acquittal. It denotes two things:-

(a) Trial of controversy arising form an issue.

(b) Trial of an election petition or complaint.

265. B.S.S.V.V.V.Maharaj v/s State of U.P, 1999 Cri.L.J 3661 (SC).

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