Sunday, 1 November 2015

Whether doctor can refuse to examine Rape victim on the ground that she is not referred by police?

From the admission of medical officer on oath it is apparent
that victim was brought before doctor on 30-06-10 at 8.30
P.M but doctor had examined her on next day i.e. 01-07-
2010 meaning thereby victim was medically examined after
about 12 hours even after her production with police requisition
before doctor, which itself diminishes the possibility of the
presence of any positive sign of rape particularly when victim is
rustic, schedule-tribe illiterate old women.
10. The delay caused by medical officer in examination of victim
cannot be justified in any way particularly when the Hon'ble
Supreme Court in State of Karnataka Vs Manjana reported in
2000 (6) SCC 188 recognised that the rape victim's need for
medical examination constituted a “medico-legal emergency” and
it is the right of the victim of rape to approach medical services
first before legally registering a complaint in police station. Thus,
the doctor or hospital is now required to examine victim of rape
promptly even if she reports to hospital directly, and voluntarily
without a police requisition. Second; it was the right of the victim
of rape to approach medical services first before legally
registering a complaint in a police station. The hospital was
obliged to examine her right away; they could always
subsequently initiate a police complaint on the request of the
victim. As a result of this landmark judgment, the doctor or
hospital is now required to examine a victim of rape if she reports
to the hospital directly, and voluntarily, without a police 
requisition. The judgment recognises the three ways by which a
hospital may receive a victim of rape: voluntary reporting by the
victim; reporting on requisition by the police, and reporting on
requisition by the Court. Unfortunately this information has not
been disseminated to all doctors, and the majority of them still
insist on a police requisition before examining a rape victim.
11. An amendment in Cr.P.C by which Section 164 A has been
inserted by Code of criminal procedure (amendment) Act 2005
(w.e.f. 23-06-2006) to meet out the aforementioned situation with
an object that the medical examination of the rape victim should
be carried out as early as possible without any delay with consent
of victim preferably by a lady doctor.
12. Section 164 A Cr.P.C is binding on the doctors, which runs
inter-alia, Section 164 A Cr.P.C. Medical examination of the
victim of rape. –
(1) Where, during the stage when an offence of committing
rape or attempt to commit rape is under investigation, it is
proposed to get the person of the woman with whom rape is
alleged or attempted to have been committed or attempted,
examined by a medical expert, such examination shall be
conducted by a registered medical practitioner employed in a
hospital run by the Government or a local authority and in the
absence of a such a practitioner, by any other registered
medical practitioner, with the consent of such woman or of a
person competent to give such consent on her behalf and such
woman shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving the
information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman
is sent shall, without delay, examine her and prepare a
report of his examination giving the following particulars,
namely:-
(I) the name and address of the woman and of the
person by whom she was brought;8
(II) the age of the woman;
(III) the description of material taken from the person
of the woman for DNA profiling;
(IV) marks of injury, if any, on the person of the
woman;
(V) general mental condition of the woman; and
(IV) 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 the 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.
(6) The registered medical practitioner shall, without delay
forward the report to the investigation 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.
(7) Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or
of any person competent to give such consent on her behalf.
Explanation. – For the purposes of this section, “examination”
and “registered medical practitioner” shall have the same
meanings as in Section 53.
JHARKHAND HIGH COURT
Cr. Appeal (DB) No. 412 of 2013

 Gujua Manjhi @ Gajju Hansada, 
 Vs.
The State of Jharkhand … Respondent

PRESENT
HON'BLE MR.JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR.JUSTICE P.P.BHATT
Citation; 2015 CRLJ 4303 Jharkhand
Dated 1st July, 2015
Per Virender Singh, C.J.

The appeal on hand has been preferred by accusedappellant
(i) Gujua Manjhi @ Gajju Hansada, (ii) Guddu Manjhi
@ Guddu Hansada and (iii) Anand Manjhi Hansada @ Anand
Manjhi @ Hansda against the judgment of conviction dated
16.5.2013 and order of sentence dated 18.5.2013 passed by
learned Additional Sessions Judge-II, F.T.C. Bokaro in S.T. No.
450 of 2010, whereby and where-under all the three appellants
have been found guilty under Section 366/34 and 376 (2)(g) of
the IPC and sentenced to undergo R.I for ten years and to pay
fine of Rs.5000/-each and in default to pay fine, R.I for six
months for the offence under Section 366/34 IPC. They have
been further sentenced to undergo R.I for ten years and to pay
fine of Rs.5000/-each and in default to pay fine, R.I for six
months for the offence under Section 376(2)(g). Both the
substantive sentences are ordered to run concurrently.
REPORTABLE2
2. The case of prosecution sans unnecessary details, as one
finds from the written report of victim-P.W.7, is that on
29.06.2010 at 8 P.M. in the night, while she was alone in her
house and was sleeping having taken her meal, Gujua Manjhi
(aged about 23 years), Guddu Manjhi (aged about 23 years)
and Anand Manjhi (aged about 23 years) and other two
unknown persons entered into her house, caught hold of her and
took her away towards Damodar river, where they committed
rape on her one by one, resultantly she fainted. After regaining
consciousness, she returned to her house at around four in the
morning and slept over there. At around 9 A.M. she woke up and
narrated her woes to her son, Dusrath Hembram and grandson,
Prem Chand Soren. Thereafter, her son went to work as such she
could not immediately inform about the incident to the police. In
the evening, when her son and her grandson returned from work,
she reported the matter to the police.
3. On the aforesaid allegations, formal FIR bearing 64 of 2010
under Section 363/376(g) of Indian Penal Code came to be
registered in police station Harala against three accusedappellants
and two unknown persons, investigation of which was
undertaken by police Sub-inspector Md Kayum Ansari (P.W 10)
and the completion of investigation resulted into filing of challan
against three accused persons, against whom charge for the
offence under Section 366/34 and 376 (2) (g) of the Indian Penal
Code was framed for which the appellant stand convicted and
sentenced in terms of the impugned judgment/order.
4. The case of accused persons, as one finds from the
statement recorded under section 313 Cr.P.C, is of denial 3
simplicitor. During cross-examination, it has been suggested by
the defence counsel to victim that the accused persons have been
falsely implicated due to land dispute by her but she denied it.
They have not chosen to adduce any evidence in their defence.
5. Learned counsel for the accused-appellant pointed out
certain flaws in the case of the prosecution viz; there being
inordinate delay in lodging of FIR, which is fatal for prosecution
case, the testimony of so called victim remained uncorroborated
by medical evidence; DNA profile of accused persons did not
match with DNA of victim's vaginal swab; no spermatozoa was
found in vaginal swab of victim; the important witness i.e. the
son of victim has not been examined as such adverse inference
can be drawn against prosecution; and the vital fact that no
external or internal injury was found on the person of victim as
such the accused-appellants may be extended the benefit of
doubt to disturb the conviction as already slapped upon them.
6. Per contra learned A.P.P submitted that there be sufficient
evidence on record to prove the guilt of accused persons and
added that external or internal injury on the private part of the
person of victim is not sine qua non to prove the guilt of gangrape.
Non-examination of son is not fatal as it has come in
evidence of one witness that the son of victim has already died.
Admittedly delay in taking vaginal swab is the prime reason for
non-finding of spermatozoa but the situation was beyond the
control of victim. However, there be cogent, trustworthy and
reliable evidence of victim regarding commission of gang rape on
her. Thus, the appeal being devoid of merit is fit to be dismissed.
7. The prosecution, in order to bring home the charges framed 4
against the accused persons, has examined altogether 10
witnesses in this case. Apart from oral evidence prosecution has
proved and exhibited signature of Prem Chandra Soren on
written statement (Ext-1), signature of Dasharath Hambram on
written statement (Ext-1/1), Radiological report (Ext-2)
Pathological Report (Ext2/1), medical report (Ext-3) and DNA
Test report.(Ext-4).
i. P.W.1- Ram Kumar Manjhi; the brother of victim has
deposed hearsay evidence about occurrence.
ii. P.W.2- Prem Chandra Soren has deposed that victim had
complained on 30-06-2010 in the morning that Gujua
Manjhi, Guddu Manjhi, Anand Manjhi and other unknown
two persons took her away towards Damodar river and
committed rape on her. He has proved his signature as well
as signature of Dasharath Manjhi on written report dated
30-06-2010 as exhibit-1 and 1/1.
iii. P.W. 3- Dr. Manas Kumar Mallick has stated that he had
assessed the age of victim on the basis of radiological
impression as more than 18 years and has proved its report
as exhibit 2. He has further stated that he had also
examined the vaginal swab and found no sperm, E.P cellplenty
and pus cells-occasional. He has also proved
pathology report in his pen and signature as exhibit 2/1.
iv. P.W.4- Sukhdeo Manjhi has stated that he was not present
at his house on 29-06-10. When he returned, he came to
know about occurrence of rape thereafter he visited
hospital, where the medical treatment of victim was going
on. 5
v. P.W. 5- Poke Manjhiyan- has turned hostile and denied his
testimony recorded in case diary by I.O during crossexamination
conducted by learned A.P.P.
vi. P.W.6- Karamchanda Manjhi, has stated that the son of
victim namely Dashrath (now deceased) had informed him
about the fact that rape was committed on his mother.
vii. P.W.7- victim/ prosecutrix.
viii. P.W. 8- Dr. Paramjit Kaur, is medical officer, who had
examined victim on 01-07-10, has stated that victim was
brought before her by A.S.I. Kayum Ansari (I.O). According
to her, she found that there was no foreign body, hair or
stain on her dress. No spermatozoa was found in the
pathological report of vaginal swab. No external injury or
internal injury was found on the private part. According to
her, it was difficult to say whether forceful sexual assault
was done on victim or not. She has proved medical report
as exhibit-3.
ix. P.W. 9- Phuleshwar Rai is part investigating officer, has
stated that he had collected medical reports of victim from
medical expert and submitted the charge sheet against
three accused-appellants.
x. P.W.10-Md. Kayum Ansari is first investigating officer, has
proved both the place of occurrences with its topography.
He is the I.O, who had sent vaginal swab of victim as well
as blood samples of accused-appellants to FSL for matching
of DNA profile. He has also proved requisition sent by him
to medical officer for the medical examination of accusedappellants
as Ext-56
8. Before initiation of the re-appreciation of the evidence of
key witness (victim), it would be necessary to discuss the fate of
medical evidence brought on record in this case.
9. From the admission of medical officer on oath it is apparent
that victim was brought before doctor on 30-06-10 at 8.30
P.M but doctor had examined her on next day i.e. 01-07-
2010 meaning thereby victim was medically examined after
about 12 hours even after her production with police requisition
before doctor, which itself diminishes the possibility of the
presence of any positive sign of rape particularly when victim is
rustic, schedule-tribe illiterate old women.
10. The delay caused by medical officer in examination of victim
cannot be justified in any way particularly when the Hon'ble
Supreme Court in State of Karnataka Vs Manjana reported in
2000 (6) SCC 188 recognised that the rape victim's need for
medical examination constituted a “medico-legal emergency” and
it is the right of the victim of rape to approach medical services
first before legally registering a complaint in police station. Thus,
the doctor or hospital is now required to examine victim of rape
promptly even if she reports to hospital directly, and voluntarily
without a police requisition. Second; it was the right of the victim
of rape to approach medical services first before legally
registering a complaint in a police station. The hospital was
obliged to examine her right away; they could always
subsequently initiate a police complaint on the request of the
victim. As a result of this landmark judgment, the doctor or
hospital is now required to examine a victim of rape if she reports
to the hospital directly, and voluntarily, without a police 
requisition. The judgment recognises the three ways by which a
hospital may receive a victim of rape: voluntary reporting by the
victim; reporting on requisition by the police, and reporting on
requisition by the Court. Unfortunately this information has not
been disseminated to all doctors, and the majority of them still
insist on a police requisition before examining a rape victim.
11. An amendment in Cr.P.C by which Section 164 A has been
inserted by Code of criminal procedure (amendment) Act 2005
(w.e.f. 23-06-2006) to meet out the aforementioned situation with
an object that the medical examination of the rape victim should
be carried out as early as possible without any delay with consent
of victim preferably by a lady doctor.
12. Section 164 A Cr.P.C is binding on the doctors, which runs
inter-alia, Section 164 A Cr.P.C. Medical examination of the
victim of rape. –
(1) Where, during the stage when an offence of committing
rape or attempt to commit rape is under investigation, it is
proposed to get the person of the woman with whom rape is
alleged or attempted to have been committed or attempted,
examined by a medical expert, such examination shall be
conducted by a registered medical practitioner employed in a
hospital run by the Government or a local authority and in the
absence of a such a practitioner, by any other registered
medical practitioner, with the consent of such woman or of a
person competent to give such consent on her behalf and such
woman shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving the
information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman
is sent shall, without delay, examine her and prepare a
report of his examination giving the following particulars,
namely:-
(I) the name and address of the woman and of the
person by whom she was brought;8
(II) the age of the woman;
(III) the description of material taken from the person
of the woman for DNA profiling;
(IV) marks of injury, if any, on the person of the
woman;
(V) general mental condition of the woman; and
(IV) 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 the 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.
(6) The registered medical practitioner shall, without delay
forward the report to the investigation 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.
(7) Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or
of any person competent to give such consent on her behalf.
Explanation. – For the purposes of this section, “examination”
and “registered medical practitioner” shall have the same
meanings as in Section 53.
13. Reasons for negative wet smear in alleged victims of sexual
assault: this could be for several reasons but two are very
common (1) Delay in taking the samples, due to late reporting
(2) Washing of the genitals.
14. In the case on hand, delay in reporting and delay in taking
sample both ruined the possibility of finding any positive
scientific sign of rape.
15. It also appears from record that vaginal swab of victim from
pathology lab was collected by I.O on 06-07-10 (after 5 days
since it was taken) as par paragraph 60 of case diary (which 9
has been perused on strength of section 172 Cr.P.C ) and it was
sent to F.S.L with the blood samples of accused persons for
matching the DNA profile of accused persons with male DNA
profile, if detected, in vaginal swab while pathological report Ext-
2/1 had already ruled out the presence of any sperm in the
vaginal swab on 02-07-2010 hence a mindless and extremely
futile exercise for matching of male DNA profile, if found, in
vaginal swab with DNA profile of blood samples of accused persons
was done by police when the result of pathological test of vaginal
swab unveiling no sperm present in when tested on 02-07-2010.
Ext-4 DNA profile report confirms our view as 'human male DNA
profile' could not be detected in vaginal swab of victim, hence no
question would arise for its matching with DNA profile of blood
samples of accused persons. Hence, we are of the view that
absence of positive sign of rape in medical evidence in the facts
and circumstances of the case would cause no effect on case of
prosecution, if the evidence of victim of rape inspires our
confidence.
16. Thus, the entire case rests upon the quality of the
testimony of victim, who was allegedly abducted and raped in
night hours. The rules laid down in following case laws are
important as guiding principle to arrive at correct conclusion.
17. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported
in AIR 1983 SC 753-
The Hon'ble Supreme Court in this case, felt that
asking for corroboration in sex offences was like
adding insult to injury of the victim. There was no
reason to insist on corroboration because of the very
nature of the offence, i.e. sex crimes, which makes it
almost impossible to gather independent witnesses for 10
corroboration. However, it was laid that in certain
circumstances corroboration by medical evidence
alone was required. These included cases where a
woman of the age of majority is found in compromising
position, who is likely to make accusations for self
preservation and where the ‘probabilities-factor’ is out
of tune.
18. State of Maharashtra v. Chandra Prakash Kewalchand
Jain, AIR 1990 SC 658
It has been held by the Hon'ble Supreme Court that if
totality of the circumstances appearing on the record
of the case discloses that the prosecutrix doesn’t have
a strong motive to falsely involve the person charged,
the court should have no hesitation in accepting her
evidence.
19. In State of Orissa Vs. Thakara Besra & Anr. AIR 2002
SC 1963
It has been held by the Hon'ble Supreme Court that
rape is not mere a physical assault, rather it often
distracts the whole personality of the victim. The rapist
degrades the very soul of the helpless female and,
therefore, the testimony of the prosecutrix must be
appreciated in the background of the entire case and
in such cases, non-examination even of other
witnesses may not be a serious infirmity in the
prosecution case, particularly where the witnesses had
not seen the commission of the offence.
20. Recently in a case law reported in (2015) 4 SCC 762
It has been held by the Hon'ble Supreme Court that
the testimony of prosecutrix is vital and unless there
are compelling reasons, which necessitate looking for
corroboration of her statement or where there are
compelling reasons for rejecting her testimony, there
is no justification on part of court to reject her
testimony.
21. P.W.-7 the victim, has stated on oath that the incident
occurred about two years back. At around 9.00 p.m., when she 11
was at her house, Gujua Manjhi, Guddu Manjhi & Anand Manjhi
forcibly entered into her house and asked whereabout of her son
Dushrath Hembrum. On being replied that he was not in the
house, they took her towards the jungle and committed rape on
her resultantly she fainted there. She returned at her house at 4
A.M and complained about the occurrence to her son. She went
to police station with her son namely Dushrath Hembrum and
Premchand Soren (P.W.-2), where case was registered, thereafter
she was sent to hospital for medical treatment. She identified
three accused persons, who were present in the Court. During
cross-examination she has stated that she, while being taken
away, had screamed but no one came. On the date of incident
there was marriage in front of her house. She denied the
suggestion given on behalf of defence during cross examination
to the effect that she has falsely implicated the accusedappellants
due to land dispute.
22. It is well settled principle of law that a witness should be
cross-examined on each and every point and failure to crossexamine
him/her on a particular point would entail a
presumption that party, not cross-examining the witness, had
accepted the evidence. On scrutiny of evidence of victim we found
that the evidence of victim, which communicates the fact that
abduction followed by rape was committed on her by three
accused appellants, has not been subjected to crossexamination.
The suggestion without any evidence, given on
behalf of defence to the effect that victim has falsely implicated
the accused-appellants, does not appeal to reasoning. There was
no reason for a woman at the age of 55 years, (grandmother of 12
P.W-2), to falsely implicate the accused-appellants at the cost of
her own prestige and honour.
23. Here it is also important to note that the evidence of P.W.2-
Prem Chandra Soren, who has also deposed that 'victim had
complained to him that Gujua Manjhi, Guddu Manjhi, Anand
Manjhi and other unknown two persons took her away towards
Damodar river and committed rape on her' as per early statement
of victim is indisputably & legally admissible as evidence of
conduct because of illustration (j) to section 8 of the Indian
Evidence Act, as such it has corroborated the evidence of
victim. What else was expected from their rustic and illiterate
family.
24. After scanning the evidence once again very minutely,
especially evidence of the prosecutrix, who happens to be a
widow (aged 55 years), there appears to be no tinge of
exaggeration so as to falsely implicate the present three accused,
who are from three different families but incidentally of the same
age i.e. 23-24 years. Therefore, we do not find any reason for not
believing her statement sufficient for the purposes of holding all
the three accused guilty of the charge of Section 376(2)(g) of the
Indian Penal Code, despite there being no corroboration to her
statement, whereas all the attending circumstances of the
prosecution case are proving the complicity of all the three
accused who took undue advantage of absence of the son of
prosecutrix, entered her house, lifted her to a particular place
and then gang raped her. Such type of persons who committed
beastly act, otherwise do not deserve any sympathy of the Court.
25. The net result is that the appeal on hand qua all the three 13
accused, namely, (1) Gujua Manjhi @ Gajju Hansada, (2) Guddu
Manjhi @ Guddu Hansada and (3) Anand Manjhi Hansada @
Anand Manjhi @ Hansda stands dismissed on all counts.
26. We have been informed that the accused are in custody for
last about five years. They shall now serve the remainder of their
sentence slapped upon them.
27. The Jail Superintendent of the concerned jail, where
present three accused are lodged, shall be informed of the
outcome of the instant appeal without any delay by the Registry
of this Court.
28. Registry is also directed to send a copy of judgment to
Principal Secretary (Health), Department of Health & Family
Welfare, Government of Jharkhand, Ranchi, for its circulation
among doctors of the state of Jharkhand for their strict
adherence on procedure incorporated under section 164A Cr.P.C
in its letter & spirit, which is of binding nature as well as the
directions issued by the Hon'ble Supreme Court in case law
reported in 2000 (6) SCC 188, both discussed in paragraph 10
to 12 of this judgment.
(Virender Singh, C.J.)
 (P.P.Bhatt, J.)
High Court of Jharkhand at Ranchi
Dated the 1st of July, 2015
Birendra/
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