Has the Supreme Court left anything for the investigating authorities to be done in cases of rape?

Mere statement of the victim that the accused has committed rape on me is sufficient to convict the
accused. But the only rider is that Court should be convinced that the victim is deposing the truth. The
S.C. has given the status of Injured Witness to the victim of rape and hence not much can be done in
such cases by the defence or I.O.

Wahid Khan Vs. State of M.P (AIR 2010 SC 1)

In this case not even the doctor was not examined but I.O caught the accused performing act.

The cases in which the role of Investigating Officers now really matters are:

1) Gang rapes are committed by multiple unknown persons.

2) The minor is raped by unknown person and/or subsequently murdered.

3) The cases where the whole description aptly fits to be a case of consensual sex but still the
victim deposes that she has been raped and the same has not been a consensual one.

4) Date Rape

5) Rape by drugging a female where the female does not remember the details of t such acts.

What prima facie helps the Investigating Officers is the forensic knowledge in cases of rape but the
most important part is whether the I.O. is acquainted with knowledge of the same.

State vs. Ramchandra Bhoi AIR 1965 Orissa 175:

It as held that it is ot e ough that the I estigati g Offi e seeks e pe t e ide e he e eeded; he
or she should see that it is not incomplete. He is over all in charge of investigation and lacunae in the
report and evidence of an expert witness hi self a spoil a ase othe ise good.

State vs. Clark

In this case a 14 year old girl was raped. The accused was waiting at a spot behind a tree and when the
girl came within his vicinity he took her and raped her. The accused was subsequently arrested and on
being arrested a knife was found in his pocket. The photographs of the spot were taken by the
investigating authority and also of the trees which were described by the victim. Interestingly, there
were some marks made on the bark of a specific tree. The marks which were made resembled the marks
that would have been made by the knife seized from the possession of the accused which subsequently
became a important circumstantial evidence against the accused for his conviction.

Thus the Investigating Officers are the ones who can really make or break the case. If the clues
recovered do not link the accused with the victim or the scene of offence, the innocence of the accused
is established.

In the case of Radhu vs. State (2007 Cr. L.J 4701 SC), the Supreme Court squarely held that the chances
of false implication cannot be ruled out and hence also the Police should not forget that there are also
false cases and cases of false implication. Forensic Science helps the innocent. But for the forensics to
come into play or can be effective only if the Investigating Officer knows :

1. The nature of physical evidence to be collected.

2. Where it is found.
3. How it is collected and packed.
4. What standard samples for comparison purposes are necessary.
5. How much sample is required.
6. How the sampling is done.
7. How the evidence will link the crime with the accused and to what extend his labours will be
rewarded by the laboratory results.

This is possible if the investigating officer is given a thorough grounding in the above aspects. He needs
both theoretical and practical training.

All police training institutions have courses in scientific aids, but the syllabi and the teaching standards
are far from satisfactory. Periodical attachment of investigating officers to the departmental forensic
science laboratories can go a long way in inculcating the scientific spirit.

Ignorance about the value of evidence sometimes causes a lot of disappointment to an investigating
officer. For example, hair are recovered in quite a few cases. Evaluation of hair does not lead to positive
identification of the source of hair. It is not possible at the present stage of development of the science.
They would not be disappointed , if they know the limitations.

Facts do not lie- Fa ts do ot lie, e a a d do , he e the i po ta e of i u sta tial e ide e

vis-à-vis oral evidence. The oral testimony depends upon the power of observation , assimilation and
reproduction of the witness. It is modified by the power of observation, assimilation and reproduction of
the witness. It is modified by auto suggestion , external influence, suggestions, descriptions and opinions
of others and rationality. Oral evidence , therefore , is coloured whereas factual evidence is free from
these infirmities.

But fa ts an also e reated:

The examination of the scene needs planning , care and diligence. In many cases the success or failure of
the investigation depends entirely upon the proper handling of the scene.

The scene of occurrence changes rapidly and cannot be preserved forever. Some of the evidence gets
lost soon after the occurrence, the other evidence disappears, gets contaminated or altered with further
passage of time.

The opportunity to examine the scene is available only once. If the same is not fully exploited the wealth
of information is lost for ever.

Case Laws:
1. Raghunandan v State. Of U.P., 1974 Cri. L. J. 453 (S.C)
In the above case both the trial court as well as the High Court had brushed aside the objection that the
blood recovered from the place of occurrence was not sent for chemical examination. The failure of the
police to send the blood for chemical examination is a serious case of murder , such as the one before
us., is to be depreciated . In such a case the place of occurrence is often disputed.

Examination of the Victim

As a matter of abundant caution the victim should be sent for immediate medical examination and the
clothes of the victim should be thereafter seized and should be carefully examined for any tears and any
unusual sighting on the clothes. It should be kept in mind that the victim should be sent for medical
examination asap but the seizure of clothes of the victim should be conducted after the medical
examination of the victim is conducted because again the doctor who is examining the victim can find
important findings which may substantially help the prosecution. In the recent case of state vs. Damu
Gaikwad, it was surprising to see that the I.O had sent the victim for examination without showing the
seizure of the clothes of victim but unfortunately the doctors report stated that the underwear was not
available. Also to my surprise, the seizure of clothes of the victim were shown after three days which
was very suspicious and points towards the lacunae in the investigation as it certainly looses vital
evidence against the accused.

Examination of the accused

- It is better to examine the accused after the victim and to look specifically for any injuries.
- If possible the accused should be examined by the same doctor who has examined the victim,
for better correlation between injuries found on the female, such as bite marks, finger tip
bruises, comparison of size and build and the physical features of the accused.
- The examination must be begun without delay as the signs of the act disappear rapidly.
AIR 1978 SC 1753 – Dr. Kohli Vs High Court of Punjab & Haryana, SC held that it is well known in
the medical world that the examination of smegma loses all its importance after 24 hrs of the
performance of the sexual intercourse. – Miss Ramdevi aged 15yrs made a report that 3 young
men had committed rape on her, they were sent immediately to the Dr. Modi, none of them
had any mark of injury on the genitals or anywhere else on the bodies, the first two had smegma
on glance penis covered by the foreskin this proved that they could not have had intercourse at
least during the last 24hrs. The girl was also examined and found to have been used to sexual
intercourse. No injuries to private parts, men were released.
- Appasaheb Shedge Vs State of Maharashtra. ( 2005 ALL MR Cri 575)
Medical certificate of the accused not brought on record, accused entitled to benefit of doubt.
- Rahim Beg Vs. State of U.P (AIR 1973 SC 343)
Semen stain on the langot of the young man can exist because of the variety of the reasons;
could not connect with the offence of rape. Rape alleged to have been committed by a fully
developed man on a girl of 10 -12 years who was virgin and whose hymen was intact-absence of
injuries on the male organ of accused would point to his innocence.
- It should be found out whether the accused had consenting intercourse with any person within
24 hrs: when did his last change of clothing and his explanations for the injuries found on his
body.
- He should be identified by the escorting police constable, and identification marks should be
recorded.
- Exact time date, month, time, place of the examination should be noted.
 Masuddin Ahmed vs. State of Assam (AIR 2010 Sc 3813)
In this case accused alleged to have abducted a minor, took her to hotel, raped her, both of
them roaming in the city etc. In this case the accused was acquitted from the charges of rape
a d it as held that No effo t as ade I.O to take se e , lood sa ples et f o the
appellant which could have given the prosecution an opportunity to obtain medical reports of
the appellant as it was necessary to establish the guilt of appellant.

Tameezuddin vs. State [(2010) 2 S.C.C (Cri) 695]

In this case the appellant has alleged to have raped prosecutrix and threatened her, when she
had gone along with the husband to the factory to recover money, this was the case of
i u sta tial e ide e, so e suppo ti g e ide e as e essa fo p ose utio s ase
besides the testimony of the prosecutrix because the medical evidence was supporting the
allegation of rape. Moreover persons present in the factory premises when the rape was alleged
to have committed not examined as witnesses though there statements were recorded during
the investigation. Significantly also semen found was not correlated to appellant as his blood
samples was not taken, this in fact points to the lacunae of the investigation though in fact of
the prosecution.

- General Examination of the accused which we recommend for better corroboration –

- The clothes should be closely examined for any kind of tear, loss of button, fibers of cloth on
which the accused might have slept during the act, blood, seminal stains, hair of the victim,
mud and other stains, grass, traces of cosmetics of the victim, particles of earth from the spot,
particles of earth or fiber trapped between the sole of footwear, trousers (they will be generally
stained at the knees due to grass and earth), clothing may have physiological fluids or hair from
the women etc.
- As regards as seminal fluid, seminal stains when dry have a yellowish white, grayish white or
yellow gray color and show an irregular map like outline. The cloth is stiffen as if starched. A
fresh stain on non absorvant material appears translucent, after a month it becomes yellow to
brown when examined under filtered ultra violet light, they show a fluorescence of bluish white
 color which is not specific as other albuminous materials such as nasal, leucorrhoeal discharges
and detergents also fluoresce.

HOW TO CONDUCT SEIZURE (so that the proof of semen is not destroyed)

The only absolute proof of semen is finding of at least one unbroken spermatozoa or electroforetic
LHD isoenzyme detection of sperms. In such cases the general method of wrapping the clothing of
the victim or the accused in a brown paper by rolling the same in all occasions is going to destroy
the semen. Even if the semen has not dried, the chances are that one may lose time between
seizures of cloth and sending it for forensic and also climatic conditions should also be taken in to
consideration. If the semen has dried such should not be folded or wrapped as the chances of
breaking the head of semen from rest of body may prove fatal to the prosecution. In such cases, the
piece of cloth on which semen is suspected should be cut and placed in a card board box so as to
avoid any destruction of the said semen.

Why the Spot should be examined meticulously?

At this juncture when we are talking about Rape the spot becomes very important factor to be taken
into consideration which the investigating officers tend to forget. In the recent case which I am
handling bearing number 644 of 2011, in this case the IO has apparently prepared a spot
panchanama after the spot was shown by the victim from a distance of 50 meters in the dead of the
night and the said was seen from a distance due to the darkness. In such circumstances what do u
expect? The spot was not seen when it was shown by the victim but after a lapse of more than 12
hours. The said spot loses all its importance as the traces of foot prints, blood stains, seminal stains
etc are lost and vital evidence against the accused is lost.

Whether the Police should send suggestive request letters to the Doctors asking them to say
whether there is Rape or not?

In such case the defence is obviously going to hammer on the fact that the Police have suggested
the medical Officer to state that the case is of rape. In the case of State of Maharashtra vs. Horilal
“a oj defe ded e efo e the Ho le “essio s Cou t there was no positive finding given by the
doctor as to any suggestions of rape but the I.O. then subsequently did send another requisition
thereby asking the doctor specific questions. This certainly is going to create a doubt in the mind of
the Court.
 Whether the police in an attempt to falsely implicate an accused commit errors?

The most important lacunae in case of false implication in case of rape on minors is the failure of the
I.O to send the accused for medical examination with categorical demand for the examination of the
penis because in case of rape on minors there is going to be an injury on the penis of the accused
howsoever denied by the medical fraternity. In case of partial penetration as well the accused is
going to show some signs of attempted rape. Again the presence or absence of Smegma makes the
case quite clear in case of accused who are not circumcised.

Case of use of Contraceptive:

In such cases, Section 27 of the Indian evidence act certainly would come to the rescue of the I.O as
it is admissible and so much of such can be proved which leads to the discovery of a fact. In cases of
administration of drugs and then commission of rape, this would certainly be of vital importance.
Also in cases where the rape is a date rape this would be of utmost importance.

Outraging modesty
Accused charges under S. 376 – Absence of injury on victim – whether offence committed coming under
purview of S. 354 – Absence of injury on the private parts of the prosecutrix – from from a reading of the
evidence of the prosecutrix, held, it is clear that the accused outraged the modesty but had not raped
her – i he state e t she loosel des i ed his a t as fi dli g – offence is one under S. 354 IPC-
sentence reduced to that already undergone [State of Punjab vs. Major Singh, AIR 1967 SC 63]

Section 354 of the IPC provides for a punishment of up to two years with fine to anyone who assaults or
uses criminal force on any woman, intending to outrage her modesty. But the provision does not define
modesty.

The “up e e Cou t, i a e e t judg e t, defi ed odest i this “e tio as follo s: Modest is a
attribute associated with female human beings as a class. It is a virtue which attaches to a female owing
to her sex. The act of pulling a woman, removing her sari, coupled with a request for sexual intercourse,
is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be
outraged, is sufficient to constitute the offence without any deliberate intention having such outrage
alo e fo its o je t.
As rape is constituted, only penetration is present. In cases where sexual assault does not lead to
penetration, the prosecution is inclined to invoke Section 354 against the accused, which results in
milder punishment.

Section 511 of the IPC deals with punishment for attempting to commit offences that are punishable
with imprisonment for life or other forms of imprisonment. It provides that when an offence is
attempted to be committed for which no specific punishment has been provided for in the code, an
offender will be punishable with half the longest term of punishment that is prescribed for committing
the respective offence.

In other words, a court can convict the accused for attempted rape. Yet courts have in general been
reluctant to do so even when the accused has been caught while attempting rape. Ranjana Kaul, a
member of the Delhi Commission for Women, points out in an article that they often rely upon the
technicality of the absence of penetration to rule out attempt and have invariably imposed on the
accused the relatively minor punishment of imprisonment up to two years for molestation.

"The emergence of sexual harassment as a wrong and a form of discrimination against women has been
articulated exclusively by the Indian courts, and has not been enacted into any statute," says Ratna
Kapur, in her book, Erotic Justice.

Sexual harassment

The inability of Section 354 of the IPC to address adequately the claims of sexual harassment ultimately
led to the filing of a class action petition in 1997 in the Supreme Court. The petition was brought by
certain social activists and NGOs to assist in finding suitable methods for the realisation of the true
o ept of ge de e ualit a d to p e e t se ual ha ass e t of o e i all workplaces through
judicial process, to fill the vacuum in the existing legislation.

The Supreme Court held in this case (Visakha v. State of Rajasthan) that sexual harassment is a clear
violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of
su h a i ide t is also the iolatio of the i ti s fu da e tal ight u de A ti le 19 1 g to p a tise
a p ofessio o to a out a o upatio , t ade o usi ess . “u h iolatio s att a t the e ed
under Article 32 for the enforcement of these fundamental rights of women.
The court defined sexual harassment to include such unwelcome sexually determined behaviour
(whether directly or by implication) as: a) physical contact and advances; b) a demand or request for
sexual favours; c) sexually coloured remarks; d) showing pornography; or e) any other unwelcome
physical verbal or non-verbal conduct of a sexual nature.

The court directed all employers or persons in charge of the workplace, whether in the public or private
sector, to take appropriate steps to prevent sexual harassment, and create mechanisms for the
settlement or prosecution of complaints. It laid down 12 guidelines in this regard and declared that
these would constitute the law of the land until the legislature took further action.

Ironically, Parliament took almost 10 years after the Vishaka judgment to prepare a draft Bill on sexual
harassment. The draft Bill, the Protection of Women Against Sexual Harassment at Workplace Bill, 2007,
is yet to be introduced in Parliament.

*** The above article has been written prior to the amendments made to 376 of Indian Penal Code.