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Report No. 172

4.4. Insertion of a new section, namely section 164A in the Code of Criminal Procedure.-

The 84th Report of the Law Commission had recommended insertion of such a provision in paragraphs 4.8 to 4.11 of chapter 4. The reasons for such a provision and the provision suggested are the following:

"III. Examination of the victim

4.8 Section 164A, CrPC (To be added).- We next deal with the victim. In many cases, the report of the medical examiner as to the examination of the female victim is also found to be somewhat cursory and does not give adequate information about the material particulars which are necessary for an adjudication as to the various ingredients of section 375. Further, it is sometimes noticed that the medical examination report is not sent promptly to the investigating officer. As a result, the possibility of tampering with the report remains. In our opinion, the report of the examination of the victim in a case of rape should (besides containing the usual formal particulars) deal specifically with -

(i) the age of the victim,

(ii) the question whether the victim was previously used to sexual intercourse,

(iii) injuries to the body of the victim,

(iv) general mental condition of the victim, and

(v) other material particulars in reasonable detail.

It is also necessary that the report should note the time of examination and be sent without delay to the investigating officer. It is very important that the report should state reasons for the conclusions recorded.

4.9. Need for legislative provisions.- Ordinarily, such matters are left to be dealt with by executive instructions. However, having regard to the importance of the subject, it would be proper to insert in the Code of Criminal Procedure, at an appropriate place, a provision incorporating the guidelines that we have suggested above. In the light of the practical working of the provision, further improvements could be made in the relevant provisions.

4.10 Section 164A, CrPC, recommended. Accordingly, we recommend that the following new section should be inserted in the Code of Criminal Procedure, 1973:

"164A. (1) Where, during the stage when an offence of rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner, with the consent of the woman or of some person competent to give such consent on her behalf and the woman shall be forwarded to the registered medical practitioner without delay.

(2) The registered medical practitioner to whom such woman is forwarded shall without delay examine her person and prepare a report specifically recording the result of his examination and giving the following details:

(i) the name and address of the woman and of the person by whom she was brought,

(ii) the age of the woman,

(iii) whether the victim was previously used to sexual intercourse,

(iv) marks of injuries, if any, on the person of the woman,

(v) general mental condition of the woman, and

(vi) other material particulars, in reasonable detail.

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

(4) The report shall specifically record that the consent of the woman or of some person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report, and the registered medical practitioner shall without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(6) Nothing in this section shall be construed as rendering lawful any examination without the consent of the victim or of any person competent to give such consent on her behalf."

4.11 Medical examination of the victim of rape. In regard to the examination of the person of the accused, section 53(2) of the Code of Criminal Procedure provides that whenever the person of a female is to be examined under that section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. The question whether a provision should be inserted to the effect that where a female victim of a sexual offence is to be examined, the medical examination shall be conducted only by a female medical practitioner has been carefully considered by us. We think that a statutory provision is not necessary, for two reasons.

In the first place, this is almost the invariable practice in India and a statutory mandate is not needed. In the second place, if a female victim does not wish to submit to examination by a male doctor, there is no legal obligation on her part to do so. For that reason also, a statutory provision is not necessary. It may be mentioned that such medical examination cannot be lawfully made without the consent of the woman or of some person competent to give consent."



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