Brief Facts: The appellant was held guilty of committing aggravated sexual assault on a 10-year-old girl. While the survivor was medically examined, she did not consent to an internal medical examination.

Decision: The Court upheld the conviction.

The Court found no reason to disbelieve the testimony of the child survivor. The Court stated that “Minor contradictions, discrepancies and infirmities regarding the exact spot where the occurrence took place are inconsequential as they do not affect the core of the prosecution case. The appellant, finding a small child aged around ten years alone inside the house gained access and committed aggravated sexual assault. Incidents of sexual assault are sometimes suppressed and concealed for various reasons and even not reported to the police due to fear of loss of reputation. Merely because ‘X’ did not give consent for internal medical examination, it did not cause dent in her statement about sexual assault. The accused, aged around 22 years, had no occasion or reason to visit the victim clandestinely in the absence of her parents without any specific reason or purpose. Victim’s consent (if any) was of no relevance as she was below 12 years of age.”

Facts: The accused sexually assaulted an 8-year old. The trial court acquitted the accused. An appeal against acquittal was filed in High Court which found the child’s evidence satisfactory, found sufficient corroboration but accepted the child’s testimony in part. The accused was convicted under s. 354. The medical evidence showed slight penetration into the vulva without rupturing the hymen. There were abrasions on medial side of labia majora and redness around labia minora.

Decision: The Supreme Court convicted the accused under s. 376.

The court considered three categories of evidence: (i) oral testimony of the child supported by other prosecution witnesses, (ii) extra-judicial confession of the accused and (iii) medical evidence. They referred to the High Court’s consideration that “there could be penetration without rupture” (para 16).

Referring to various textbooks and previous case laws, the court looked at the medical evidence. They pointed out and concurred that “In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial.” (para 44). They specifically stated:
“When the evidence of PW 13 is taken with the evidence of medical officer who found an abrasion on the medial side of Labia Majora and redness present around the Labia Minora with white discharge even after 5 days, it can be safely concluded that there was partial penetration within the labia majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape. Moreover, the respondent himself has confessed twice admitting the commission of rape without rupturing the hymen which confession is not disbelieved by the High Court. The respondent is a medical officer who has 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 his confession having fully understood the meaning of the word ‘rape’. Therefore, as admitted by the respondent himself, he without forcibly and completely penetrating his penis into the vagina of PW 13 had slightly penetrated within the labia majora or vulva or pudenda without rupturing the hymen and thereby satisfied his lust after emission of semen’s. In this context, it is not necessary to enter into any nice discussion as to how far the male organ has entered in the vulva or pudenda of PW 13 since it is made clear that there was penetration attracting the provisions of Section 375 IPC. The evidence of PW 13 is amply corroborated not only by the medical evidence and the corroborating evidence of PW 12 but also by the plenary confession of the respondent (sic).” (para 48)

Facts: In this case, the issue was whether the evidence of the prosecutrix if unsupported by medical evidence could be believed.

Decision: The Court observed:

“5. The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private pans. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on “no reasons”.

Facts: In this case, one of the issues was whether the two-finger test was valid in Indian law.

Decision: The Court after noting the judicial precedents on this point, observed:

“Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society.
It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.
12. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.

13. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Facts: The Trial Court had acquitted the Respondent/Accused, inter alia, on the premise that the testimony of the prosecutrix was untrustworthy due to various improvements, contradictions and inconsistencies in the same. The trial court held that the accused has cast serious doubts on the case of the prosecution and raised a possibility of false implication. The broad case of the prosecution was that when the prosecutrix’s mother found her missing, she went looking for the prosecutrix and opened the door of a room, she found the Respondent over the prosecutrix and both their clothes were removed. The prosecutrix was 8 years and 8 months old on the date of the incident.

Decision:  The High Court overturned the acquittal observing:

1. In this case, the Court called for a fresh DNA report from the FSL, after drawing a sample from the residue of the semen stained underwear of the prosecutrix, and after obtaining a fresh blood sample from the prosecutrix and the accused. This was ordered after the Director, FSL was summoned to the High Court with samples collected.
2. The Court observed that the prosecutrix described the accused as “uncle” reflecting her innocence. To a question if she understood the importance of telling the truth she stated “Haan, jhoot bolte hai tho kaua kaatha hai, isliye sach bolo” which too reflected the innocence, spontaneity and truthfulness of the prosecutrix. She further described the process of ejaculation in great detail.
3. The initial statement of the mother found in the rukka Ex. PW-8/A- that she pushed the door of the accused and it opened, cannot be said to be contradictory with the statement of the prosecutrix recorded under Section 164 Cr PC, or with her statement recorded before the court. The statement of PW-1 before the Magistrate Ex. PW-1/A is a summary statement. Her statement recorded before the court is a more elaborate one.
4. PW-8, mother was cross-examined at length and she stood her ground.
5. The Trial Court had ignored the hymen was not intact. The medico- legal literature supports the case of the prosecution that the bruises suffered by the prosecutrix on her thighs were as a result of sexual assault upon her by the accused.
6. The Court observed:
   “Parikh‟s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology 6th Edition Page 5.38, authored by Dr. C.K. Parekh states:
   “in young children as the vagina is very small and hymen deeply situated, the adult penis cannot penetrate it. In rare cases of great violence, the organ may be forcibly introduced, causing rupture of the vaginal vault and associated visceral injuries. Usually, violence is not used and the penis placed either within the vulva or between the thighs. And as such, only redness and tenderness of the vulva may be caused. The hymen is usually intact ……………………….. There may be no signs or very few signs of general violence, since the child has no idea of the act is also unable to offer resistance”. (emphasis supplied)”
7. The Court further observed that the Trial Court proceeded on the basis that the prosecution had not produced any witness to establish that the clothes of the prosecutrix and her vaginal smear were having semen marks pertaining to the accused. Pertinently, he does not observe that no semen marks were found on the underwear of the prosecutrix – being mindful of the fact that the unexhibited FSL report on record (now exhibited as CW-1/A), did mention the presence of semen on the underwear.
8. While during the Trial Court proceedings, the FSL report was unfavourable for the prosecution and it was not exhibited, in the High Court proceedings, it emerged upon appreciation of the evidence that the fresh blood sample of the accused was duly drawn and sent to FSL for conduct of the fresh DNA examination for comparison of the DNA with that found on the underwear of the prosecutrix Ex. 2. It stood conclusively established that the samples were duly drawn and safely delivered in a sealed condition to the FSL for conduct of fresh tests – on the basis whereof the FSL prepared the fresh report Ex. CW-2/A.

Facts: In the case in hand, the doctor, P.W. 6 after investigation, had opined that it could not be ascertained as to whether the victim was raped or not. The doctor had neither admitted nor denied about the commission of rape on the victim.

The issue was whether in the absence of corroborative medical evidence, the accused could be convicted relying solely on the testimony of the prosecutrix. The High Court upheld the conviction.

Decision:The Court observed:

“It is also settled that the opinion of a doctor that there was no evidence of any sexual intercourse or rape, cannot be held to be sufficient to disbelieve the allegation of rape by the victim. Such an opinion cannot throw out the evidence of a victim if the same is otherwise found to be cogent and trustworthy. The defence has not been able to show as to why the victim in the instant case should not be believed or why she would falsely implicate the accused. It has been observed time and again that the prosecutrix of a sexual offence is a victim of a crime and there is no prescription of law which requires that her testimony cannot be accepted unless corroborated. There is no rule that her testimony cannot be acted upon without corroboration in material particulars. It is only in a situation where the Court finds it difficult to accept the version of the prosecutrix on its face value, it may have to look for other direct evidence or circumstantial evidence which lends corroboration to her testimony. Absence of injuries on the private parts of the victim cannot be construed as evidence of consent.”

Facts: In this case, the hymen of the prosecutrix was found to be intact and there was no vaginal bleeding. The issue was whether the accused could still be convicted.

Decision: The Court observed:

“16. Report of the medical examination of the victim female child/PW5 at Exhibit 23 shows that hymen of the victim female child/PW5 was intact and there was no bleeding from her vagina. On this aspect, material elicited from cross-examination of the victim female child/PW5 is relevant. She was questioned by the cross-examiner as to, to what extent the finger was penetrated in her vagina. She answered that the penetration was slight. This material from cross-examination of the victim female child/PW5 clarifies as to why her hymen was intact and there was no bleeding. Even otherwise, it is a settled legal position that the medical evidence is also a corroborative piece of evidence but where the medical evidence does not support the otherwise clinching and trustworthy ocular evidence of any material witness then, the testimony of such ocular evidence will prevail on the medical opinion and not vice versa.”

Facts:In this case, a doctor had examined the victim, a female child. He could not find any injury marks on the person of the victim female child/PW4. It was argued that this negates the case of the prosecution.

Decision:The Court observed that:

“It is a settled legal position that the medical evidence is also a corroborative piece of evidence but where the medical evidence does not support the otherwise clinching and trustworthy ocular evidence of any material witness then, the testimony of such ocular evidence will prevail on the medical opinion and not vice versa. In the case of Ranjit Hazarika v. State of Assam MANU/SC/1319/1998 : (1998) 8 SCC 635, the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix, the Apex Court took a view that the medical opinion cannot throw over board an otherwise cogent and trustworthy evidence of the prosecutrix.

18. The Honourable Apex Court in B.C. Deva v. State of Karnataka MANU/SC/7856/2007 : (2007) 12 SCC 122, inspite of the fact that no injuries were found on person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Honourable Apex Court upheld the conviction of the accused. The Court observed that:

“18 The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix 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.”

Thus, non-finding of injury on the person of the victim or on the private part of the victim, after a lapse of eight or nine days cannot be a circumstance to throw out the testimony of the victim female child/PW4.”

Facts: In this case, no injury was found on the body of the prosecutrix and there were minor inconsistencies in the evidence given.

Decision: The Court observed:

“17. Now comes the medical evidence. On this aspect law is very clear. It is a settled legal position that the medical evidence is also a corroborative piece of evidence but where the medical evidence does not support the otherwise clinching and trustworthy ocular evidence of any material witness then, the testimony of such ocular evidence will prevail on the medical opinion and not vice versa. In the case of Ranjit Hazarika v. State of Assam MANU/SC/1319/1998 : (1998) 8 SCC 635, the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix, the Apex Court took a view that the medical opinion cannot throw over board an otherwise cogent and trustworthy evidence of the prosecutrix.

18. The Honourable Apex Court in B.C. Deva v. State of Karnataka MANU/SC/7856/2007 : (2007) 12 SCC 122, inspite of the fact that no injuries were found on person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Honourable Apex Court upheld the conviction of the accused. The Court observed that:

“18 The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix 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.”

19. The victim female child/PW1 was examined by PW8 Dr. Arati Apate at the Civil Hospital, Miraj. This Medical Officer had questioned the victim female child/PW1 for noting down the history. The victim female child/PW1 has stated to his Medical Officer about the sexual assault on her by the appellant/convicted accused. PW8 Dr. Arati Apate has stated in her evidence that the victim female child/PW1 disclosed to her that she suffered PV bleeding after the incident. This, according to the learned defence counsel, is contrary to the version of the victim female child/PW1. This minor inconsistency cannot be used to jettison version of the victim female child/PW1 in respect of the incident. PW8 Dr. Arati Apate had made record of history given by the victim female child/PW1 in Medico Legal Case papers at Exhibit 64. Column (II) on page 2 of the Medical Legal Case papers nowhere shows that the victim female child/PW1 had given history of per vaginal bleeding to this Medical Officer. As such, no overbearing importance can be given to this aspect even otherwise.

20. PW8 Dr. Arati Apate had not noticed any external or internal injuries either on private parts or body of the victim female child/PW1. Sexual assault was that of 4th August 2015 whereas the victim female child/PW1 was examined at 3.15 p.m. of 7th August 2015. As such, it is not expected to have evidence of sexual assault with passage of such time. So far as penetrative sexual assault is concerned, provisions of Section 3 of the POCSO Act need to be kept in mind. Penetrating penis to any extent into the vagina constitutes the offence of penetrative sexual assault. Slightest penetration can make out this offence and on that aspect, testimony of the victim female child/PW1 is fully trustworthy. As such, ocular evidence coming on record from the mouth of the victim female child/PW1 prevails over the medical evidence.”

Facts:In this case, the medical examination of the prosecutrix revealed, inter alia, that “Two fingers could easily be inserted in her vagina. Her breasts were fully developed.”

Decision: The Court, on this point, observed:

“24. The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.

25. It is relevant to quote Section-146 of the Indian Evidence Act. It reads thus:-

146. Questions lawful in cross-examination.–When a witness is cross-examined, he may, in addition to the questions herein-before referred to, be asked any questions which tend-

1. to test his veracity,
2. to discover who he is and what is his position in life, or
3. to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture: 1[Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.]

26. Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.

27. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character.

28. The two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent. In view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy. [See: Lilu @ Rajesh and Anr. Vs. State of Haryana; MANU/SC/0369/2013 : (2013) 14 SCC 643]

…..

31. The learned APP submitted that he is not sure whether the State of Gujarat has issued any directions to do away with the Per-Vaginum examination i.e. the “two-finger test”. As the Supreme Court is looking into this issue, we need not to go further in the matter. Our endeavour is to remind the trial Courts as well as the medical fraternity that the “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such test, then it should take cognizance of the same and do the needful in the matter.

32. We take notice of the fact that the Maharashtra Government has done away with finger test on rape victims by issuing a Government Resolution in 2013. The Resolution says that such test is non-scientific most of the time, often resulting in hurdles in the investigations and miscarriage of justice. This GR was issued based on a report by eight member panel appointed by the Maharashtra Government. The GR explained that the procedure of finger test is degrading and crude and medically and scientifically irrelevant. Information about the past sexual conduct has been considered irrelevant and the doctor need not verify if the victim habitually has sexual intercourse.

33. The Planning Commission’s Working Group headed by the Secretary, Women and Child Development Ministry, in its report in January, 2012 recommended abolition of this test in order to protect the victims of sexual abuse from further mental trauma. The group also suggested to review the Code of Criminal Procedure to make the procedures more women and child friendly. The social activists have for long been demanding a ban on the “archaic and outdated” practice. They termed the test “unscientific and degrading”.

34. Undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. The Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with the gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy. Keeping in mind the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power 1985, the apex Court said, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medial procedures conducted in a manner that respect their right to consent.”