To Whom Do Experts Testify?

Ideological Challenges of Feminist Jurisprudence

Author(s): Flavia Agnes
Source: Economic and Political Weekly, Vol. 40, No. 18 (Apr. 30 - May 6, 2005), pp. 1859-
1866
Published by: Economic and Political Weekly
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 To Whom Do Experts Testify?
Ideological Challenges of Feminist Jurisprudence
This paper attempts to critique texts of medical jurisprudence from the perspective
of gender concerns. The obvious and stated biases which are found in sections on
sexual offences, the implicit bias by exclusions while dealing with issues of bride burning
and wife murder, and the deliberate silence regarding malpractices which thrive on societal
prejudices against wonmen in chapters of medical ethics are the focus of this essay.
It is clear that feminist jurisprudence cannot be superimposed upon the pre-existing
edifice structured on gender bias. Gender concerns have to be woven into
the doctrine of medical jurisprudence from its base.

FLAVIA AGNES

its concerns. Gender sensitive feminism seeks to correct the

Introduction imbalance and unfairness in the systems of knowledge, which

have excluded attention to the circumstances of women's gendered
A n interaction of the two sister professions - medicine and lives even on issues that intimately affect their lives. Formulated
law - has created a branch of learning and practice calledthus, there is a need to place the principles of legal and medical
orensic medicine, which deals with the application of theory and practice on a common platform to assess their
medical knowledge and expertise to the processes of law. This relationship to women's lives.
branch of science has also been referred to as medical jurispru- In this section an attempt is made to examine whether the
dence, which means legal aspects of the practice of medicine.authorities are neutral while dealing with issues of sexual assault
Toxicology deals with the symptoms diagnosis and treatmentand rape. The authoritative 'expert opinions' in these latest
of poisons and the methods of detecting them. editions of medical jurisprudence need to be tested against
contemporary social trends and legal reforms.
II The rising rates of rape cases in India and the amendments
Textbooks Reviewed made in the law regarding rape are discussed in Modi's textbook.
Despite these additions, the overall approach to the issue remains
The following textbooks of jurisprudence and toxicologyunchanged.
used The section begins with a note of caution to the
widely in the teaching of Forensic Medicine have been reviewed
medical professionals. "Beware - A charge of rape, of attempted
here: rape or of indecent assault may be made against the doctor or
Modi's Medical Jurisprudence and Toxicology, 22nd Edition dentist - which may arise from a genuine misunderstanding of
(Reprint 2002), edited by B V Subrahmanyam, LexisNexis- the nature of medical examination (especially of breasts or genitalia)
Buitterworths. A nurse or a female attendant/ witness should be present while
Modi's Medical Jurisprudence and Toxicology, 21st Edition a male doctor examines a female patient" (p 372). The introduc-
(1988), edited by C A Franklin, N M Tripathi. tory additions seem to have no bearing to the rest of the chapter.
HWVCoxMedical Jurisprudence and Toxicology, Seventh Edition For instance, the sub-section on 'false charges' is particularly
(2002), edited by P C Dikshit, LexisNexis-Buitterworths. offensive and reeks of deep-rooted hostility against women.
Digest on Medical Jurisprudence and Toxicology, Second Edition The presumptions are always against women, that women are
2001 (Reprint 2003), edited by Mishra and Avasthi, Orient prone to file false cases of rape and that it is up to the doctor
Publishing Company. to exercise caution while examining a victim of alleged rape and
protect the innocent male accused of rape!. What is striking about
Ill the passages in the books are (a) that blatantly anti-women
Neutrality of Medical Opinion statements are disguised as neutrality, and (b) that they spread
misinformation with authority and do not take into account the
and Expert Witness
recent trends in the medico-legal aspects of rape which favour
Both lawyers and medical professionals are duty bound to assist women

the court in arriving at the truth and hence there is no fundamental
difference in their roles before the court. Do these expert opinions
reflect the general societal bias against women and carry it into
the witness box and legal arguments to reinforce the pre-existing
bias, in the name of neutrality?
Law has developed over time in the context of theories and
institutions that are controlled by patriarchal values and reflect
An examination of the presumptions and co
under the guise of neutrality reveals that blatantly
is being advocated in the name of caution and
anti-women bias. The message to the doctors t
be vary of the woman who approaches them wi
of rape is loud and clear. In its enthusiasm t
anti-women bias, the book tends to forget the r

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to play during a rape trial. The doctor is basically a witness for ways, and a woman or a young girl may be paralysed with fear.
the prosecution. He cannot play judge or jury and it is not his The courts have begun to accept the social reality of women who
prerogative to pass a verdict on the character and conduct of the are raped and evidential rules regarding injury have been favourably
victim. His role is merely to give a medical opinion regarding changed through successive judgments.
the extent of injuries caused and the trauma suffered. But the In 1981, in a case where a 16-year old was gang raped, the
book prods the medical practitioners to be detectives rather than Supreme Court had held: "The fact that there is no injury or that
practitioners of medicine and healing. What is indeed shocking the girl is used to sexual intercourse is immaterial in a rape trial"
is that two decades of women's movement have not made a dent (Harpal Singh vs State of Himachal Pradesh (1981 Cri LJ SC 1).
into the thinking of these experts. While at one level thereAis recent judgment on this issue has come from Patna High Court
an over-emphasis that a medical jurist has great responsibility, which held that non-appearance of signs of rape on the body
for very often he will find that he is the only reliable evidence of the victim was immaterial since she was kidnapped by the
on which depends the liberty or life of a fellow being (Cox, p 55), accused and kept in confinement for three days after the rape
at the other, the concern for a victim of sexual assault is singularlyand her medical examination was done after her recovery, and
lacking. upheld the conviction of the accused (Satendra Kumar Singh
It is little wonder that young doctors, who pass out from medical Kushwaha vs State of Bihar (2003 Cri LJ 392).
colleges fed on this doctrine, make unwarranted comments about
the conduct and character of a rape victim, based on the level Corroboration
of elasticity of her vagina. The woman's chastity, morality and
virginity is put in the dock. Corroboration by some medical or scientific evidence is almost
The lacunae become even more glaring, when we examine the always necessary before an accusation of rape can be substan-
expert opinion on legal issues concerning a rape trial. In the tiated in the courts and this makes the importance of medical
following section they are juxtaposed along with the recent case evidence all the more vital. Though medical evidence is extremely
law on the subject. In legal discourse on rape, issues like injuries, important, absence of medical evidence would not lead to an
penetration, corroboration and false charges overlap and spill acquittal in every case of rape. Regarding corroboration, Justice
over from one category to the other and the categorisation here Krishna Iyer in his inimitable style has held:
is merely one of convenience. But the same case law can be used When rapists are revealing in their promiscuous pursuits and half
to refute the premises in each of the category: of humankind - womankind - is protesting against its hapless lot,
when no woman of honour will accuse another of rape since she
sacrifices thereby what is dearest to her, the court cannot cling
Penetration
to a fossil formula and insist on corroborative testimony, even if
taken as a whole, the case spoken to by the victim strikes ajudicial
Essential to the definition of rape, is penetration of the female
mind as probable. When a woman is ravished what is inflicted
genitals by the male organ. Any act, which falls short of thisis not merely physical injury but the deep sense of deathless shame.
definition can only be an indecent assault, even if the motivation Hardly a sensitisedjudge who sees the totality of the circumstances
is similar. No attempt is made to inform the doctors that even will reject the testimony of a rape victim unless there are very
a slight penetration is sufficient. The Bombay High Court in a strong circumstances for discrediting her evidence (Rafiq vs State
recent decision has held that the degree and depth of pene- of UP 1980 Cri LJ 1344).
tration are irrelevant (Sidharth Atchutrao Sawant vs State ofIn another landmark judgment in 1983, the Supreme Court held
Maharashtra (2000) 3 Mah LJ 46). In another case the court as follows:

laid down that a slight penetration in the vulva is sufficient toIn the Indian setting, refusal to act on the testimony of the victim
constitute an offence of rape. Partial penetration into the labia of sexual assault in the absence of corroboration is adding insult
majora of the vulva or even an attempt at penetration is sufficientto injury. Why should the evidence of the girl or a woman who
(Rahul Pundalik Birahade vs State of Maharashtra (2000) 5 complains of rape or sexual molestation be viewed with the aid
of spectacles tinged with doubt or disbelief? To do so is to justify
Bom CR 148).
the charge of male chauvinism in a male dominated society. On
principle, the evidence of a victim of sexual assault stands on par
Injuries with the evidence of an injured witness (Bharwada Bogibhai
Hirjibha vs State of Gujarat 1983 Cri LJ 202.)
Rape is intercourse without consent and the only evidence of
this, available to the medical examiner, is evidence of forceful
False Charges
penetration. Even this is not necessarily conclusive of rape, as
some intercourse even with consent may be done roughly and Many cases of alleged rape are unfounded, the allegations being
traumatically. Conversely, though rape may leave no physical made by the girl or woman from motives of spite, jealously, fear
signs, the presence of physical signs to some degree may not of pregnancy or venereal disease or sometimes for blackmail.
in themselves constitute evidence of rape. Voluntary, consenting False charge is a plea used by the defence lawyers specially in
sexual intercourse may be of such an enthusiastic quality as to cases where the rape has been committed by a known person
leave some signs of trauma, even if it be only reddening and or when there is delay in filing the FIR. The premise on which
oedema due to friction or the fresh rupturing of the hymen in the section on false charges is based is contrary to all sociological
a virgin. However, it is also essential to a charge of rape that findings and crime record trends in the country. In fact, a rape
the woman should resist to the utmost of her capabilities. victim is extremely reluctant to file a case and often this causes
The courts are well aware that fear and intimidation can be delay in FIR. The courts have begun to view the issue of delay
caused just by use of weapons, the threat of causing injury or sympathetically taking into consideration the social reality of a
spoiling the reputation of a young girl and in innumerable other rape victim.

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 An importantjudgment of the Supreme Court delivered in 1996 it a duty to bring the latest legal positions as reflected in law
in the case of the rape of a school girl, addresses this concern journals to its readers. Cox fares better. Despite the negative
in the following words: presumptions and comments, the section on sexual assaults
In sexual offences delay in the lodging of the FIR can be due to ends with some recent case law which are refreshingly positive
variety of reasons particularly the reluctance of the victim or her (p 597-99) and serve to counter the biases in the preceding
family members to go to the police and complain about the incident passages of the same book. Some of these are summarised below:
which concerns the reputation of the girl and the honour of her In a rape case of a 14-year old, who was gang raped by three
family. It is only after giving it a cool thought that a complaint men, the doctor stated that the hymen was ruptured and admitted
of sexual offence is generally lodged. Even if there were some two fingers. The high court acquitted the accused on the basis
delay in lodging FIR in respect of offence of rape, if it is properly
of this report, which indicated that the girl was habitual to sexual
explained and the explanation is natural in the facts and circum-
intercourse. The Supreme Court reversed the judgment and held
stances of the case, such delay would not matter.
that the ruptured hymen and admission of two fingers cannot
In this the victim did not disclose the offence to her teachers or
be viewed as if the girl was habitual to sexual intercourse (Kumari
classmates, but to her mother upon reaching home. This conduct
Narayanamma vs State of Karataka and Ors [(1995) SCC 26]).
of the victim girl was held to be natural and her evidence could
In the rape case of a 55-year old woman, the Supreme Court
not be disbelieved on grounds that she did not disclose the incident
held that absence of spermatozoa in the vagina or in the cervix
to the first person she came across (State of Punjab vs Gurmit
is not a conclusive proof of for not being subjected to rape. In
Singh 1996 CrLJ 1728). Anotherjudgment of the Supreme Court
the absence of any ulterior motive for falsely implicating the
delivered in 1995, also expresses a similar concern while pointing accused, the testimony of the victim, corroborated by medical
out that social attitudes towards rape victims make them reluctant
evidence, was reliable (State of Himachal Pradesh vs Lekhraj
to approach the police and thus the delay was understandable and Anr (2000) SCC (Cr) 147).
(Karnel Singh vs State of Haryana 1995 Cr LJ 4173). The In another case of a five-year old, raped by a relative, the
sensitivity to the victim girl expressed by the Supreme Court in
Supreme Court reversed the acquittal by the high court. The courts
the above cited judgments finds no place while discussing issues
must deal with rape cases with utmost sensitivity. It is not
of 'false charges' in books of medical jurisprudence.
necessary to discover the spermatozoa on the private parts of
the victim. The slightest penetration is sufficient to constitute
Refusal by a Doctor to Examine a Rape Victim rape. Absence of external marks of violence on the body of the
accused and victim are not necessary when the victim is a child
The doctor should refuse a police request to examine the woman
(State of Himachal Pradesh vs Gyan Chand (2001) 2 SCC 118).
in some ill-lit office of a police station or in any other similar
unsuitable premises. The need in rape cases is to conduct the
medical examination at the earliest. A doctor cannot refuse to Trauma of Rape
examine a victim even if she is not referred by the police. OnIn the positive side, the books contain a section on the trauma
the State of Karnataka vs Manjanna Case the Supreme Court of rape.
expressed its disapproval of the doctor who refused to initially
conduct the medical examination of the victim as she was not
referred by the police and the medical examination was conducted
Accidents Following Rape
only after the lodging of the FIR when the police referred the
Convulsions, epileptic fits, and mental derangement have been
victim to the doctor. The Court held that:
known to follow rape. Death may occur as a result of rape from
The refusal of some Government hospital doctors, particularly in
shock due to fright and mental emotion from injuries resulting
rural areas, where hospitals are few and far between, to conduct
from the assailants in an effort to overpower the victim, or due
any medical examination of a rape victim unless the case of rape
to excessive bleeding from severe injuries to the genitals and
is referred to them by the police would not be proper. Such a refusal
perineum, especially among children. These injuries, if not im-
to conduct the medical examination necessarily results in delay mediately fatal, may produce sloughing, and cause death from
in the ultimate examination of the victim, by which time the septic infection after several days or weeks. In some cases, death
complainant herself may have washed the evidence of the rape has resulted at the time of the perpetration of the offence from
away or be otherwise lost. It is expected that the State will ensure
suffocation caused by covering the mouth and nostrils with the
that such situation does not recur in future. hand or by thrusting a piece of cloth down the throat to prevent
the female from crying for help. It is, therefore, necessary to
Marker of Contemporary Trends examine the mouth for the presence of injuries or foreign bodies,
when the body of a female, who is alleged to have died from rape,
Law and legal doctrines are not static. They are transient and is brought for autopsy. Sometimes, a female is first raped, and
in a society, which is on the move, the law is rendered vibrant then murdered to prevent the identification of the assailant by the
and relevant only through judicial pronouncements uttered in victim (see Modi 22nd edition, p 508).
courts almost on a day-to-day basis. These pronouncements This passage is quoted not for its bias but that it could have
drastically alter the text of statutory provisions, at times beyondbeen elaborated by giving illustrations of the damage and the
recognition. Hence, reference to statutes by itself will not revealtrauma caused due to rape. Some of the most gruesome cases
the latest position. In order to assess the correct legal position,of fatal accidents, which have followed incidents of rape find
one would have to constantly scan law reports. no mention here.

Modi's book on jurisprudence falters in this area.. The case One of the horrifying stories that hit the headlines in the 1970s
law referred to in the book is either archaic English case lawwas the rape of a nurse, Aruna Shanbaug in 1973, in K E M
or Indian case law of the colonial era. The book does not consider hosptal in Mumbai.. Her poignant state has been brought back

Economic and Political Weekly April 30, 2005 1861

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to the public arena through a book written by a journalist, Pinki information as to whether the patient had bathed, douched,
Virani titled, Aruna's Story. To make the medical students urinated, defecated, used spermicide or had vaginal discharge
understand the implications and trauma of rape and to develop or bleeding.
sensitivity towards the victim, such stories need to find a place
in books of medical jurisprudence. Another incident of interest IV
in the context of injuries due to rape is the case of an eight-year
Wife Murder: Invisibilising the Offence
old, raped in a government rescue home in Mumbai. It was the
doctor on duty who took the initiative to file an FIR. The case If gender bias in the chapter on sexual assault is active and
received media publicity. It was then that we moved the Bombay vocal, for the offence of wife murder it is in the reverse. Here
High Court for her safe custody and compensation. While the the offence is conspicuous in its absence. The incredulous silence
doctor's role was commendable, the incident is narrated for the the books maintain is deafeningly loud. One had to scan the
fact that children admitted with a complaint of shock and con- relevant chapters over and over to find even a passing comment
vulsions, particularly from government rescue homes, are not while the issue of death and injury has been dealt with extensively
routinely checked for sexual abuse and none of the texts make and elaborately.
a point about this. (Order passed by the high court in an unreported
case, Majlis Manch versus the State of Maharashtra WP No 585 Offence Hits Headlines in 1980s
of 2000 dated April 25, 2000).
Alongside the anti-dowry campaign most Indian cities also
Gender Sensitive Medical Kit witnessed public protests against killing of young brides in their
marital homes. Grotesque photographs of charred bodies of
young, educated, urban women made it to the front pages of
Contrary to the fears expressed by the experts, the ground reality
is that the negligence, callousness and bias within the medical
newspapers and became cover stories in magazines. But in
profession contribute to a great extent in miscarriage ofmedico-legal
justice terms, most of these murders were being passed
off and
to a rape victim. The need of the hour is to unlearn the bias either as 'accidents' or 'suicides', which led to a demand
suspicions against women contained in books of medicalfor stringent laws to deal with marital murders.
juris-
prudence and to develop a gender sensitive approach while Since it was extremely difficult to meet the strict standard of
examining a rape victim. evidence for murders committed upon women within the privacy
of their homes, there was a need for a special law, which would
In view of this, the manual brought out by Centre for Enquiry
into Health and Allied Themes (CEHAT), an NGO working take in
into account the specificities of women's lives. A need was
Mumbai on medical and health related issues, for the examining
felt to redefine 'murder' and to render it more pliant to cases
physician in cases of sexual assault is particularly relelvant
of bride burning as these offences were commonly referred to.
[D'Souza 1998]. CEHAT sees the purpose of medical and forensic
The state responded to the demand by introducing a new offence,
examination of the woman and the accused as being able dowry to death (S 304B IPC). If a woman died due to unnatural
establish the following: death within seven years of her marriage and if she was subjected
- A sexual act has been attempted or completed. to dowry harassment prior to her death, then the burden of
- The woman has not given her consent: lack of history to be
proving/disproving the offence shifted from the prosecution to
inferred from history of resistance and/or evidence of struggle
the accused, i e, the husband and his relatives. Similarly the laws
and injuries inflicted on her by the accused. on abetment to suicide (S 306 IPC) were also reframed to deal
- Consent given was not valid - e g, evidence of consumption
with the problem of an increasing number of women committing
of alcohol or drugs or of mental unfitness. suicides due to harassment and cruelty. Here the presumption
- Verification of age of pre-pubertal/adolescent girls. shifted to the husband and his family to prove that they did
CEHAT disapproves of the trend of the 'finger tests' not
being
drive the woman to suicide. Yet another offence, cruelty to
performed by doctors in cases of sexual assault to determine
wives and dowry harassment (S 498A IPC), was also introduced
in 1983.
whether the girl was a virgin or not. Insertion of one finger with
difficulty, according to medical jurisprudence, denotes that aWithin
girl this context, a pre-existing medico-legal terminology
was a virgin while easy insertion of two fingers is indicative ofacquiring new significance. Faced with the situation of
started
the girl being 'habituated to sexual intercourse'. Despite the fact to prove a crime in the absence of eyewitnesses, the
having
woman's own testimony became the sole piece of evidence.
that all rape victims need not be virgins at the time of commission
of the offence, the dispute regarding the veracity of theTermed
fingeras 'dying declarations', convictions hinged on the veracity
test, the humiliation that the victim goes through during the
of cross
these testimonies. In this context, the doctors on duty had a
examination if the finger test shows the girl was 'habituated to to play. The manner of recording the declarations, the
new role
sexual intercourse' and the protest by women's organisations,
state of mind of the victim while recording them and the doctor's
this test continues to dominate medical examination to evidence upon the condition of the victim at the time of recording
cast aspersions on the character of the victim and thereby theseherstatements became important questions in wife
testimony. murder trials. Other related questions such as whether injuries
The kit, designed after consultation with doctors, medicolegal were ante-mortem or post-mortem, whether the deaths were
experts, lawyers and women activists is refreshingly pro-victim homicidal, suicidal or accidental and whether they were self
and emphasises sensitivity to the victim including the creation inflicted, came to occupy centre stage in the trials under offence
of the atmosphere and the presence of a family member. It also of dowry death.
advises that in case of severe injuries, the examination be con- The medico-legal implications of these grave developments
ducted after administration of anaesthesia. It seeks to obtain were such that they needed a separate categorisation and an entire

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chapter within the science of medical jurisprudence. In default
they should at least have been dealt with elaborately under
sections on burns and injuries. What is surprising is that they
find either no mention or at best, a cursory passing comment.
Addressing Gender Bias in a Vacuum
How does one begin to address a bias where there are no
narratives to critique? When one confronts only an emptiness,
an abysmal vacuum? The task here is even more challenging than
reproducing the offensive passages as I have done for rape and
sexual assault. The only way I have found it feasible to address
the bias is by examining sections which ought to have had a
reference to dowry death/wife murder.
Cox's Medical Jurisprudence and Toxicology has a chapter
which deals with injuries caused from 'Physical Agents, Heat,
Burns and Cold. On page 537, burns are classified as follows:
Burns due to dry heat; burns due to moist heat (scalds); those
due to chemicals, and those due to radiation . As one scans further
one finds the following subsections:
Whether the burns were inflicted before or after death: The
preliminary decision is of great forensic importance, because of the
possibility of the disposal of a criminal death in a fire. The differ-
entiation between ante-mortem and post-mortem burns must
be attempted in every examination of a fatal burning. Although this
may be difficult or even impossible in some cases, it must be
uppermost in the mind of the medical examiner (Cox, p 540).
Injuries upon a burnt body: Great care has to be taken to distin-
guish injuries upon a body which were inflicted before death, from
those which are artifacts due to the burning process or to post-
mortem injuries occurring as a result of the fire (Cox, p 547).
Burns in special circumstances: Both homicide and suicide by
burning is not all that uncommon and where inflammable fluids
such as kerosene, gasoline or other organic liquids have been used,
then there may be some obvious signs of trickling of the burning
fluid over certain parts of the body. For instance, if a body is
splashed with kerosene whilst lying on its back and then ignited,
then there will be runs of burning liquid down the side of the neck,
sides of the trunk, between the thighs and other areas, especially
if clothing is absent in these areas. Thus the position of the body
may sometimos be determined by common sense interpretation
of the gravitational route of the burning liquid (Cox, p 545).
Cigarette burns: Cigarette burns are occasionally seen, especially
in a sadistic situation and in child abuse syndrome. They are usually
circular, about a quarter of an inch in diameter, which scaling and
reddening (Cox, p 545).
Injuries not due to the heating effect: Injuries on burnt bodies
may be genuine ante-mortem lesions or may have been inflicted
after death. Where bodies are recovered from burned buildings
there may be severe injuries from falling roof beams, collapsed
ceiling, roof tiles, masonry, etc, all of which may have injured a
body either before or after death. Some victims are killed before
they are burned by the collapse of such a structure and it is only by
careful evaluation of the burns, the inhalation of soot and the
presence of carbon monoxide, that the circumstances may be
clarified. It is never safe to 'assume the obvious' in burning, as in
any other medicolegal situation, and no premature opinion should
be given until all the facts are known and the result of the post-
mortem examination have been considered (Cox p 546).
Suicide, accident or homicide: Whether a death is a suicide,
accident or homicide is largely a matter of police investigation.
As mentioned above, suicide by burning fluids is not uncommon
and sometimes the position of the body may be determined by
the trickling marks of the fluid burns. The determination of whether
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the person was dead or alive is naturally of vital importance in
distinguishing homicide from accident or suicide but can only be
part of the decision, the rest being the province of police inves-
tigation. A careful search must always be made for other causes
of death even where there are extensive body burns. The presence
of stab wounds, bullets and strangulation have been missed more
than once by a superficial autopsy. In certain circumstances, death
may be very rapid, especially in motor vehicle, air-craft and engine
room fires where there is a confined space and highly inflammable
liquid such as gasoline or kerosene (Cox, p 547).
Deaths Due to Neglect (p 567), Starvation Deaths (p 568),
Deaths Associated with Medical Procedures and Anaesthetics
(571), and even Masochistic or Sexual Asphyxias (p 361). This
last section states:
In Europe and America a phenomenon has become more widely
recognised in recent years - that of accidental asphyxia from
aberrant sexual practices of a masochistic nature. Though little
mention has ever been made in Indian textbooks of this matter,
it is almost certain that such cases do occur, but are not recognised
as such and are mislabelled as suicides.
The section on injuries also provides a very wide categorisation
and has a special chapter on Self Inflicted Injury: Fabrications
(p 495). Under this various types of issues are discussed including
suicide and self inflicted injury and self inflicted injury due to
mental abnormality. There is also a separate section, which deals
with transportation injuries and accidents - air, rail and road
traffic injuries.
It appears that the only category that does not merit a mention
even in passing is wife murder or its more commonly used term
dowry death. The changes in criminal law which brought in newer
sections like S 304B and 498A of IPC and the altered nuances
of S 306, all of which relate to women dying unnatural deaths
in their homes - homicidal or suicidal - are blotted out.
Modi's Medical Jurisprudence and Toxicology (22nd edition)
also has an elaborate listing:
Burns are injuries produced by the application of dry heat such as
flame, radiant heat or some heated solid substance like metal or
glass, injuries caused by friction, lightning, electricity, ultra violet or
infra red light rays, X-rays and corrosive chemical substances, etc.
Scalds are moist heat injuries, produced by the application to the
body of a liquid at or near its boiling point, or in its gaseous form,
such as steam. They resemble burns in severity, when produced
by oils or other sticky substances, which boil at a much
higher temperature than water. Scalds produced by molten metals
cause great destruction of the affected tissues, as they stick to the
affected parts.
Burns due to House Collapse: A number of persons may die from
burns when a fire breaks out in an inhabited house or when an
explosion occurs in a gunpowder or fireworks factory or in an
airplane or automobile accident. In such cases, wounds caused
by the falling of rafters, bricks, etc, in addition to the burns, may
be seen on the bodies.
When one has almost given up, one comes across the section
titled, 'Suicidal, Homicidal and Accidental Burns' (Modi, p 318).
Suicidal, homicidal and accideztal burns: Occasionally, people
commit suicide by soaking their clothes first with kerosene oil
and then setting fire to them. Sometimes, they may keep a cloth
in their mouth or wrap several turns of wire around the neck, with
a view to stifle a cry. In such cases, whether the mouth was stuffed
firmly or not, or whether the wire around the neck is tightly wound
or not-must be established post-mortem.
The pernicious custom of dowry among certain Hindu castes
sometimes leads young women to commit suicide in this manner.
 Some murders by husbands and 'in-laws' of Hindu married women more than 30 pertain to wife murders. There is also an extensive
have been reported, when the demand of dowry was not met. chapter on 'Dying Declarations'. A significant number of
According to a circular from home ministry in India, a panel of cases that are cited also relate to wife murders and dowry deaths.
two doctors, are now required to carry out the post-mortem on The latest case law is also included right at the beginning of
the body of a married woman 'dying of burns (or other reasons)'
the book at (p lxv-lxxx). In these pages one finds the latest
within seven years of her marriage or if her age was less than 30
case law of 2002. A sampling of the cases cited here are
years at the time of her death in suspicious circumstances.
reproduced below:
Then it proceeds to give an illustration: EvidenceAct, 1872, Section 3 - Circumstantial evidence- murder:
An 18 year-old woman filed a complaint at the city magistrate's Where FIR was lodged by husband/accused, about killing wife
court at Lucknow that she was burnt by her husband with a pair in heat of passion on being abused by her. The said statement was
of tongs. She had several small marks of superficial burns causing of confessional nature and could not be used against the accused.
redness and vesication on the wrist, forearms, legs and thighs. However, accused had not explained about the injuries on de-
Some of these had the shape of the knob of the tongs. During ceased, existence of blood on his shirt and exclusive access of
the trial, it was shown that they appeared to have been self inflicted, accused to house was proved as he had locked it from outside
inasmuch as they were on the places easily approachable by the and immediately after lodging FIR had opened the locked door
woman herself. It was found that she had inflicted the burns to
with his key. Held that chain of circumstances were complete and
strengthen her case for divorce from her husband. proved his guilt (Digest, lxv) (Ajai Singh vs State of Rajasthan
2002 Cri.LJ 3704).
It is indeed ironic that even here, Modi finds it relevant to cite
illustrations which are anti-women! On the next page, the recent Evidence Act, 1872, Section 32 - Evidentiary value of dying
changes in law are briefly discussed. A few paragraphs later, there declaration: Where the dying declaration was recorded by mag-
is a discussion on accidents which makes interesting reading. istrate within few hours after the victim was admitted in hospital.
There was statement of magistrate in his examination that at that
Accidental cases are very common, especially among women and
time victim was conscious. Medical officer who was present at
children on account of their loose garments catching fire, while
that time of recording of dying declaration had also made endorse-
sitting near an angethi, chula, Primus stove or an open lamp. Cases ment of consciousness of victim. Held that mere non-examination
of accidental death by burns sustained from Primus stoves became
of doctor in whose presence dying declaration was recorded did
so frequent among the Gujarati women of Bombay that the Coroner
not affect its evidentiary value (p lxv) (Shanmugam vs State of
had often passed strong strictures against their husbands or parents
Tamil Nadu AIR 2003 SC 209).
for allowing the use of these stoves in their houses. Cooking gas
Evidence Act, 1872, Section 32- Bride burning: Dying declaration
is another dangerous source of burs and clothes made from
challenged on the ground that no medical certificate was appended
synthetic fibres are a contributory factor (Modi, p 320). about condition of the deceased: Where the deceased was shown
to have gone to the hospital all alone by changing different vehicles
How Serious Is the Negation? on the way, there was statement of doctor and Magistrate on record
which indicated that declarant was in a fit state of mind to give
The lone comment of Modi on this issue sounds almost the statement. Held that such circumstances could be used as
anthropological and robs the issue of its contemporariness and
supporting evidence about mental condition of the deceased along
urgency: "The pernicious custom of dowry among certain Hindu
with other evidence (p lxix) (Dhanraj vs State of Mahatashtra 2002
castes sometimes leads young women to commit suicide Cri LJ 4325).
in this
manner. Some murders by husbands and 'in-laws' of Hindu
married women have been reported, when the demand of dowry Table 1: Reported Cases of Dowry Deaths in India
was not met." But media reports, crime statistics and law1990
journals 1994 1995 1996 1997 1998
stand as mute testimony to the scale of violence unleashed upon4935 5092 5513 6006 6917
4836
women in recent times. The news items of women being burnt
Note: These statistics are only of
for dowry have become daily features in newspapers. Crime
under S 304B of IPC and do not
statistics record a steady rise in reported cases of dowry deaths
the category of murder (S 302
in the country (Table 1). under S.306 (abetment to suic
A more accurate picture would emerge only when we Source:
compare Crime in India, 1996 and 1
of home affairs.
the figures of murder to wife murder. One way of getting even a
rough estimate is by analysing the space wife murder occupies
Table 2: Crimes again
in relation to general murder in law journals. Issues of bride
Year
burning, wife murder and suicides by married women have Murder Wife Murder Percentage of
Wife Murder to Murder
become a significant trend in sections dealing with murder and
(1) (2) (3) (4)
suicide. The figures reflected in Criminal Law Journal, an
1985 89 3 3
important reporter of law relating to crimes in India, are produced
1988 84 12 14
in Table 2.
1989 107 14 13
As seen in Table 2, the ratio of wife murder to general murder 1990 139 14 10
indicates a steady upward curve and a dramatic increase from 31991 134 13 10
1992 194 33 17
per cent in 1985 to 21 per cent in 1997. Despite this, the experts do
1993 179 31 17
not find the need to discuss the medico-legal issues, which have1994 238 40 17
surfaced around this crime. Among the books reviewed only the1995 311 61 20

last one, Digest on Medical Jurisprudence and Toxicology by1996 343 65 19

1997 324 68 21
Mishtra and Avasthi, has a chapter titled, 'Dowry Death and Death
1998 294 53 18
Caused by Burning'. Of the 42 cases referred to in the chapter

1864 Economic and Political Weekly April 30, 2005

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 Evidence Act, 1872, Section 32 - Bride burning-evidentiary value ignore it only at their own peril since legal and medical prac-
of dying declaration: There was evidence of staff nurse attending titioners would soon find these books redundant.
the deceased that she was in fit mental condition. Doctor's certi-
While Modi has not dealt with the topic of dying declarations,
ficate to that she was also reliable and could not be rejected merely Cox has a sub-section in Section I, Chapter Four on 'Dying
because it was subscribed after dying declaration. The fact that
Declarations'. As against the recent case law cited in the chapter
it was not recorded in question and answer from, was immaterial.
on sexual offences, here the case law is dated. The cases cited
Signature or thumb impression could not be obtained from the
here are all prior to the 1990s except for a single one of 1998.
deceased since it was difficult for her to affix signature in a lying
down posture. Conviction of accused on basis of dying declaration
While 14 are from the period 1967 to 1985, 10 are from the two
was proper (p lxix) (Devendrappa vs State of Karnataka 2002 Cri years 1986 and 1987. So, 24 out of the 26 cases are for incidents
LJ 2867). which occurred prior to the amendments of 1983 and 1986. But
Evidence Act, 1872, Section 32 - Dying declaration of deceased the point to be emphasised is that the two cases, one of 1988
who was burnt by her 'Devrani' by sprinkling kerosene on her: and the other of 1998, both address issues of wife murder. But
Correctness of dying declaration was obtained merely on the even here the issue discussed is not wife murder, but the incident
ground that admission entries in hospital mentioned about bursting of wife murder is unfolded through the facts narrated. This only
of gas stove as cause of burn injuries. It was claimed that victim substantiates my premise that if one were to examine recent trends
was not conscious when admitted to make any statement and and reported cases on burns, injuries or dying declaration, the
entry was made by third person on hearsay information. Held
exploration cannot be undertaken without an elaborate discussion
that it did not carry any legal or evidentiary value so as to discard
on the increasing trend of wife murders and dowry deaths. That's
dying declaration as false. It was more so when residue of kerosene
how grave and serious the issue has become in criminal juris-
was found in burnt clothes and broken pieces of bangles of
deceased as per report of forensic laboratory, as such, dying prudence and medico-legal terms and hence the vacuum is all
declaration was reliable (p lxx) (Mamta vs State of Haryana 2002 the more glaring and shocking.
Cri LJ 3482).
Evidence Act, 1872, Section 113-A - Bride burning - Plea of alibi V
- Principles regarding circumstantial evidence: The plea of alibi Gender Concerns in Medical Ethics
as raised by the appellant when the husband stated after the dinner
he along with a friend went to Gymkhana Club for a coffee and This essay would be incomiplete if no mention is made of
it is only at the club that he was informed of the fire in the house medical ethics in the context of medical malpractices. Hence
immediately. This plea of alibi stands disbelieved by both the the subject is discussed briefly here. No other issue highlights
courts. Where the parties were having estranged relationship, the unscrupulous nature of medical practice in the country than
divorce proceedings by mutual consent had already been initiated
selective female abortions. The medical profession has been
on payment of Rs 3,00,000 to be affected to wife by husband.
exploiting social prejudices against women for amassing wealth.
There was incriminating conduct and activity of accused which
The amniocentesis tests have been promoted as a solution to the
was proved by overwhelming evidence. The appellant-accused had
not offered any reason nor explanation except plea of alibi which problem of dowry. The amounts got scaled down as the
high court ascribed to be false. Held that there was sufficient malpracatice spread to smaller cities and towns across the coun-
evidence on record to connect appellant with brutal killing of try, whether Dhule in Maharashtra or Amritsar in Punjab, to
wife (p lxxv) (Gurpreet Singh vs State of Haryana, II (2002) rope in middle and lower classes. 'Pay Rs 500 now, rather than
DMC 505 (SC)). Rs 50,000 Later' was the new slogan to attract the lower classes.
IPC, 1860, Section 306-EvidenceAct, 1872, Section 113-A -Proof At times the amounts to be saved were as low as Rs 5,000.
of abetment of suicide: The deceased wife ended her life by A survey of 50 private gynaecologists in Bombay revealed that
pouring kerosene oil on her and setting her on fire. There were 84 per cent were performing sex determination tests. A prelimi-
allegations that accused-husband had treated his wife with cruelty
nary survey of 40 nursing homes in Delhi revealed that 29 of
and thus was guilty of abetment of suicide. Dying declaration
the 40 (73 per centt), had an ultrasound machine and of these
showed that there was persistent course of cruel conduct on part
of the accused. There was evidence of doctor that deceased was 80 per cent of them employed it for the purpose of sex deter-
in fit state of mind when she made her statement, Dying decla- mination [Baru 1993]. In 1982, the issue hit the national headlines
rations recorded by Naib Tahsildar and Magistrate was true and to an error in the determination of foetal sex carried out at
due
voluntary. Though deceased wife was treated in mental Hospital the New Bhandari Hospital at Amritsar. Such errors are not
for mental ailment but at the time of the commission of suicide uncommon. They had occurred earlier in cases of lesser mortals.
she was not of "unsound mind". She had committed suicide
This time, however, it was not an ordinary foetus. A powerful
within 3-1/2 years of her marriage because of cruel treatment by
government officer, craving for a son, had asked his wife to
her husband. Held that provision of Section 113-A of Evidence
undergo the test. Diagnosis as female was, as usual, followed
Act sprang in to action and accused was convicted under Section
by abortion of the foetus. It was then discovered that the aborted
306, IPC (p lxxv) (Ramesh Baburao Patil vs State of MP 2002
Cri LJ 3364). foetus happened to be male. The embittered father launched a
campaign to discredit the hospital. What eventually happened
The significant point that these randomly selected cases ad-
was the contrary. The clinic became famous and its practice
vance is that each of them was reported in crime reporters in became even more lucrative [For a more detailed discussion see
the year 2002. By citing these case law from the Digest on Medical Ravindra 1993].
Jurisprudence and Toxicology by Mishra and Avasthi, I do not
A campaign, which was initiated in Mumbai by women's
wish to advance an argument that these authors are highly sensitive
groups and health activists in the 1980s, resulted in a state act
to gender concerns or that they have feminist leanings. The point
regulating these tests in Maharashtra (The Maharashtra Regu-
to be made is that with the significance this issue has commanded
lation of Use of Pre-natal Diagnostic Techniques Act or PNDT
within criminal jurisprudence is such, jurisprudential experts can
Act for short). A later campaign at the national level resulted

Economic and Political Weekly April 30, 2005 1865

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in a central legislation. But what disappeared were the blatant In conclusion, all that needs to be emphasised is that the new
advertisements, not the culture of selective abortions of female theory advocated by feminist jurisprudence cannot be merely
foetus. On the contrary, in the decade that followed, the problem superimposed upon the pre-existing edifice structured upon
not only persisted but gained new levels of popularity, with the inherent gender biases. Gender concerns have to be woven into
aid of newer technology. the doctrine of medical jurisprudence right down from its base.
The ultrasound sonography, prescribed in a routine manner for Superimpositions only lead to confusions and contradictions and
all pregnant women, became the newer vehicle to determine the are exposed to the danger of the doctrine itself becoming redun-
sex of the foetus. Abortions of female foetuses became rampant. dant in the wake of the newer trends within jurisprudence.
The seriousness of the issue hit the policy-makers and the At each juncture of writing newer editions, the experts would
academic world, only when the provisional census reports for have to abandon the trend of slavishly copying from the older
2001 were published. While the general sex ratio showed a texts, outdated examples and the archaic sexist presumptions.
marginal increase from 927 in 1991 to 933 in 2001, the sex ratio The authors also need to assess contemporary trends and rewrite
for under six showed a dramatic decline from 945 in 1991 to entire sections with the view of building in gender sensitivity.
2001. The only logical conclusions that can be drawn, that Both
all Modi and Cox have failed to do this. Further, the newer
factors being equal from 1991 to 2001, the only additional factorlegal positions have to be ascertained through a careful scanning
of the rampant misuse of medical technology would have brought
of the latest law journals, and the books need to include the most
in this demographical debacle. recent judgments in favour of women to popularise them within
Pursuant to a public interest litigation filed by CEHATthe
andmedical fraternity. All this can be achieved only if there is
a serious will and desire to rectify the existing notions of female
others for stricter implementation of the act in the Supreme Court,
sexuality
the Supreme Court issued directions to all state government to and to rewrite the books with a view to bringing in
file affidavits regarding the action taken in implementing the
gender
act. justice. If this basic will is lacking, the attempts to revise
When state governments lapsed in complying with the directions,
the sections will turn out to be cursory and the deep rooted biases
the court issued further orders for confiscating all machinerywill
usedbe left intact. The essay is written with the hope that the
for ultrasound tests that are not registered. counter information provided here will eventually get incorpo-
rated within the textbooks of medical jurisprudence and the
Treatment in Texts concerns of feminist jurisprudence will get merged with the
concerns of medical jurisprudence. 1
Turning to books of medical jurisprudence, one finds a silence
similar to the one mentioned regarding dowry deaths. But Email:
the flaviaagnes@vsnl.net
omission is even more glaring since the legal provisions are
addressed directly to the medical practitioners, a serious matter References
of medical ethics. What is sought to be monitored and regulated
by the enactments and litigation is their misconduct. Modi Baru,hasR V (1993): 'Reproductive Technologies and the Private Sector:
a chapter on 'Law in Relation to Medical Men' (Chapter XXIV Implications for Women's Health' in Health For Millions, February,
1(1), pp 6-8.
pp 683-735) which has a range of topics including the rights of
D'Souza, Lalitha (1998): Sexual Assault of Women and Girl Children: A
an unborn child, but does not have even a cursory commentManual on and Evidence Kit for the Examining Physician, CEHAT,
medical malpractice of diagnostic techniques being promoted to November.
Mumbai,
eliminate the female foetus. Ravindra, R P (1993): 'The Campaign against Sex Determination Tests'
Cox in section I of chapter six ('The Doctor and the Law: in The Struggle against Violence by Chhaya Datar (ed) Shree Publishers,
Calcutta, pp 51-99.
Medical Ethics, Medical Councils, Professional Secrecry, Con-
sent and Medical Negligence' (pp 72-120)) and eight ('Regu-
lation and Control of Medical Practice in India' (pp 139-53)):
EPW Index
Even here while issues of medical secrecy, confidentiality,
negligence, secrecy and also the rights of the unborn child are
discussed, one finds no mention of the misuse of pre-natalA comprehensive subject and author index to
diagnosis by medical professionals. EPWfor 2002 and 2003 is available. The index for
It is this silence which has to be broken in order to build gendereach year is published in two half-yearly (six months)
concerns within the medical profession. volumes: January-June and July-December.

VI The price for the EPW Index for each half-yearly

Conclusions volume and for each year is as below:

Half-yearly Index: Rs 25 each

This essay has attempted to critique texts of medical jurispru-
Index for one year: Rs 40 each
dence from the perspective of gender concerns. The obvious and
stated biases which are found in sections on sexual offences, the
The index can be ordered from Circulation Manager,
implicit bias by exclusions while dealing with issues of bride
Economic and Political Weekly, Hitkari House,
burning and wife murder and the deliberate silence regarding
284 Shahid Bhagat Singh Road, Mumbai-400001.
malpractices which thrive on societal prejudices against women in
the chapters on medical ethics have been the focus of this essay.
(Demand Drafts are preferred. In outstation cheques,
While highlighting the biases, the omissions and the lapses,please
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more recent pro-women trends have also been discussed at length.

1866 Economic and Political Weekly April 30, 2005

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