Name:- Arpan Chakraborty.
Intern at ubAdvocate.
Email:- arpan.chakraborty292003@gmail.com
contact No.:- 9831156213.
Date:- 24-01-2022
Dear, Nirmala.
PROCEDURE FOR MEDICAL EXAMINATION OF RAPE VICTIMS
Section 164A, Criminal Procedure Code says:
1. The woman against whom the offence of rape has been committed shall be sent for
medical examination within 24 hours of receiving the complaint
2. The medical examination shall be conducted with the consent of the victim or with
the consent of a competent person on her behalf
In Samira Kohli v. Dr. Prabha Manchanda and Another, Supreme Court held that the
person giving the consent must be competent to give consent and it must be voluntary and
based on adequate information provided by the doctor, like nature of the treatment, all the
risks involved etc.
1. Rape victim shall be examined 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
2. The medical examiner, to whom the woman is sent, shall examine without any
delay and shall prepare a report containing following information:
1. Consent of the woman or the person competent to give consent on her
behalf
2. exact time of commencement and completion of the examination
3. Name and address of the woman and the person who brought her
4. age of the woman
5. the description of material taken from the person of the woman for
DNA profiling
6. marks of injury
7. mental condition of the woman
8. Any other information/ detail required
9. Reasons for arriving at the conclusion from point e. -h.
3. Consent is the key to proceed for further examination. If the consent is not
obtained, the examination shall not be deemed to be lawful.
GUIDELINES AND PROTOCOLS ISSUED BY THE MINISTRY OF
HEALTH AND FAMILY WELFARE FOR MEDICO LEGAL CARE
FOR THE VICTIMS OF SEXUAL VIOLENCE
To supplement the procedure laid in Section 164A, after the Nirbhaya case, Ministry of
Health and Family Welfare in 2014 gave certain guidelines and protocols for medico legal
care for the victims of sexual violence:
1. Basic details and Consent: Medical examiner shall record the name, age, address,
sex, name and relationship of the person who brought the rape victim/ survivor and
the consent of the victim
2. Before taking the consent of the victim, victim shall be informed of the nature of
medical examination. Only in life threatening cases, the doctor may proceed with
the examination without the consent as given in Section 92, IPC.
3. Identification marks: Two marks of identification should also be recorded, for
example moles, scars or any mark.
4. Menstrual and vaccination history is to be recorded, and if the victim is
menstruating at the time of the examination then a second examination is required
on a later date in order to record the injuries clearly.
5. History of incidence: Medical examiner shall record the history of the incidence
in survivor’s own words, which shall have evidentiary value in court of law. If the
history is narrated by a person other than the survivor, his/her name shall be noted.
6. Details of the clothing, medical and surgical history should be recorded.
7. General Physical examination: response to doctor’s questions, space and time
awareness, pulse rate, blood pressure, temperature, pupil and stain or semen mark
on the clothes of the victim should be examined and recorded.
8. Examination of injuries: the entire body surface should be examined for any
injuries, fractures, nail abrasions, teeth bite marks, cuts, boils, lesions, any
discharge, weapon infection or stain on the body and shall be recorded with
particular details of these injuries.
9. Examination of genital parts and orifices: External genital area and Perineum is
observed for evidence of injury, seminal stains, stray pubic hair, foreign material.
Sample of pubic hair, and matted pubic hair is taken and preserved.
10. Examination of vagina is done with the help of sterile speculum lubricated with
warm saline/ sterile water to check the internal bleeding, bruises or any injuries.
Such examination is not required in cases of minor where there are no signs of
penetration or visible injuries. If at all the examination is required, it shall be done
under the effect of anaesthesia.
11. Two- Finger Test: Per vaginum examination must not be conducted for
establishing rape/sexual violence and the size of the vaginal introitus has no
bearing on a case of sexual violence. The guideline was given after the Supreme
court’s judgement which held that the test is a violation of a woman’s right to
privacy. The two finger test, is a way to determine whether the hymen of the
woman is intact or not.it is based on the assumption that hymen can rupture only
when a female undergoes sexual intercourse. The method is unscientific, against
human rights and has no bearing on determination of commision of rape.
12. Any injury, swelling, bleeding, discharge or stain near anus, anal opening and oral
cavity should be examined and recorded.
13. Collecting samples: if requested by police, radiographs of wrist, elbow, shoulders,
dental examination etc. are be advised to be collected for age estimation.
14. Urine sample: to determine the pregnancy
15. Blood test: blood sample is collected for evidence of baseline HIV status, VDRL
and HbsAg
16. Post examination: After examination, medical practitioner should document the
report, formulate opinion and sign the report. A copy of report must be given to
the survivor, as it is her right to know about the information.
17. All the evidences collected during the examination, like clothes of he woman,
swabs from vagina, anal opening etc, pubic hair sample, foreign material, nail
scrapings, swab sticks along with the report must be placed in an envelope and
handed over to the police or judicial magistrate.
DOCTORS CANNOT DO TWO-FINGER TEST
Two- Finger Test also called, per vaginum examination is a way to determine whether the
hymen of the woman is intact or not.it is based on the assumption that hymen can rupture
only when a female undergoes sexual intercourse. The method is unscientific, against human
rights and has no bearing on determination of commision of rape. Supreme court in Lillu @
Rajesh & Anr vs State Of Haryana held that the two finger test is unscientific and it violates
woman’s right to privacy, physical and mental integrity and dignity.
After the judgement, guidelines were passed by the Ministry of Health and Family Welfare in
2014 which also condemned the test, and said that it must not be performed. Instead of the
two finger tests, various tests are performed which are discussed above.
LAWS AND THEIR ENFORCEMENT
Guidelines are laid, provisions are amended in the interest of the victims, but what really is
the ground reality? Not always the medical examination is conducted in accordance with the
guidelines and policies. In a study conducted by an NGO “Partners for law in
development” along with the Department of Justice, Ministry of Law and Justice and UNDP
(United Nations Development Programme) showed that the victims, despite of the guidelines,
were facing hurdles in filing of an FIR. The report also said that medical examinations were
not carried out within the guidelines set by the Ministry of Health and Family Welfare such
as consent is not formally taken, thumb impressions are taken much later, clothes of the
victim not even connected with the crime were taken as evidences.
The guidelines of 2014 after the Nirbhaya case mandates doctor to be sensitive towards the
victim while examining. But even after the guidelines of 2014 and Supreme court’s
judgement in State of Karnataka v. Manjanna of 2000 which held two finger test in violation
of women’s fundamental right, there are number of cases where such tests were
performed. In one of the cases, the medical report said that the victim is habitual to
sexual intercourse as her vagina easily admits two fingers.
Even after 2002 amendment which disallowed the defence to question the prosecutrix about
her past sexual conduct for determination of commission of rape, still the two finger test pave
way to the same thing. In Vinay Krishna Ghatak versus State of Rajasthan, Rajasthan
High court held, “That the fact that the prosecutrix was an unmarried girl and she was
habitual to intercourse further goes to show that she was a consenting party.”
Further at the end of my task I would like to Mention that my opinion is based on the
YouTube link of Mr. Jeevan Prakash AOR, Supreme Court.
Arpan Chakraborty.
Intern at ubAdvocate.
