December 4, 2021

Applicability of Forensic Science on Sexual Violence Perpetrated against Women in India

“The legislation has responded with amendment of laws but what about enforcement?”

-Kumari Selja, member of parliament, September 2016

Introduction

In December 2012, Delhi Gang Rape, sparked massive nationwide outrage and swayed political momentum in favour of reforming India’s inadequate criminal laws governing sexual violence.[1] This led to amendments in the Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act- which collectively form the backbone of criminal laws dealing with sexual offences. While the amendment was in the right direction, very little attention was paid to forensic evidences for fast convictions. Due to limited resources, forensic techniques are not utilized in most criminal investigations. The present criminal justice administration of India is still at very basic stage.

Due to lack of legal and scientific knowledge among medical and paramedical staff, investigating agencies and among victims, only 27.2 per cent conviction rate in Rape cases were recorded as per NCRB 2018 report. This paper will try to explore the applicability of Forensic science in criminal investigation and what role it plays in keeping law and order in a society. The essay will discuss the lacunas of the Indian Criminal Justice System in forensic evidences in crimes against women and will raise the awareness for a prominent forensic system in the country.

Criminal investigation is a pragmatic science that comprises of the study of facts, used to categorize, uncover and demonstrate the culpability of an accused criminal.[2]  A comprehensive criminal investigation can include probing, consultations, cross-examinations, evidence collection, preservation and various methods of investigation. This crucial task of investigating and establishing the charge on alleged offenders is assigned to a dedicated investigative agency, the police. Truth is positioned in a Court of Law only when it is having firm and sound foundation of evidence.[3] In the last few decades, nations all over the world have accepted the infusion of scientific technology in crime investigations which has proved a major breakthrough in the journey of advancement of criminal justice system. Magistrates and courts play an essential role in the proper functionaries of the criminal justice, by deciding the culpability of the offenders and determining their punishment. This process of deciding the culpability by courts which ultimate result into conviction is backed by a set of complex investigation, appreciation of fact and collecting evidences. Any investigation should be supported with evidence.

When it comes to the level of investigation, nothing can prove more beneficial to the investigating agency that the use and implementation of the principles of forensic science. It has come up in a big way to assist criminal investigation which can mark the difference between the conviction and acquittal in the court of law. Forensic science has become an indispensable part of modern criminal investigation techniques and plays important role in keeping law and order in a society.

Forensic science is the application of a broad spectrum of sciences to answer questions of interest to a legal system. It is defined as “The application of science to those criminal and civil laws that are enforced by the police agencies in a criminal justice system”.

California Criminalistics Institute has defined forensic science as:                                               

“Forensic Science is the application of the methods and techniques of the basic sciences to legal issues. Forensic Science is a very broad field of study. It includes Crime Laboratory Scientists, sometimes called Forensic Scientists or more properly, Criminalists, work with physical evidence collected at scene of crimes.”  

Midwest Forensic Resource Centre (U.S. Dept. of Energy) has defined Forensic Science as: “Forensic science is the applicability of natural sciences to the procedures of law. In practice the subject of forensic Science draws the Principles and Methods from the subject like physics, chemistry, biology and other science subjects.”

In simple words it is science, which involves the application of multiple branches of science to the purpose of law. It involves anatomy, medicine surgery, chemistry, physics, DNA profiling, computer science, botany and physiology. The functioning of forensic science is highly critical in nature and required almost all the branches of science to enable the court of law to reach to a proper conclusion. The word forensic is derived from the Latin adjective forensic, meaning “of or before the forum”.

In today’s world, with its advanced scientific technique forensic science is capable of answering important questions and therefore becomes an integrated part of criminal justice system in the dispensation of justice in criminal, civil and social contexts. Forensic evidences are collected by the multiple experts from the crime scenes during the investigation and each evidence is so collected is so unique and important in its own way that it becomes necessary to analyse it separately in order to reach the conclusion. Both state and Central Government have developed labs which assist the courts, police, and other investigating agencies during investigation or cross examination procedure. Presently, in India there are six central forensic labs that fall under the Ministry of Home Affairs at Calcutta, Hyderabad, Chandigarh, Guwahati, Pune and Bhopal. The Central Forensic Lab in New Delhi falls under the Central Bureau of Investigation which only handles cases investigated by the CBI.[4] Besides these, every state has a state forensic lab.

In the case of D.K Basu vs. State of West Bengal,[5] the Supreme Court articulated that enforcing agencies must act within the bounds of law and there is need for developing scientific methods of investigation and interrogation of the accused. Unfortunately, in India due to the limitation of law, there is very less applicability of forensic science during investigations and trials. The criminal justice system of India always seen at the provisions of law through the view point of the accused and made basic right available to them which act as a barrier in efficient working of the forensic department. Though these have been established but we still not have concrete development and advancement in our science and thus a lot of transgressors are acquitted because of limitation to use forensic science in court rooms.

Restrictive Use of Forensic Evidences in Rape Cases

In India, sexual violence in general and rape in particular, received extensive media coverage following a fatal infamous gang rape of a physiotherapy student in Delhi on 16 December 2012; also, popular as “Nirbhaya Case”.[6] This heinous incident led country wide outrage and finally compelled the Government of India to amend laws related to sexual assaults, especially rape, which led to passing of Criminal Law (Amendment) Act, 2013. Based on the recommendations made by Verma Committee Report, Criminal Law (Amendment) Act of 2013 was passed, expanding the definition of the rape under section 375 of Indian Penal Code, amending existing statutes and rules of evidence relating to crimes of sexual violence, professionalizing forensic/medical examination of victims, sensitizing police in the country etc. Indian legal system makes it mandatory to medically examine both victim and accused for proving rape. The Criminal Law Amendment Act, 2013, amended all three pieces of legislation.[7]

Since the laws amended, according to the National Crime Record Bureau (NCRB) report, the number of rape cases registered had “dramatically risen” since 2013. Even though the growing trend of registered criminal complaints for rape shows that the culture of silence is shifting, however the working of Indian criminal justice system in sexual assault cases showing no positive response. According to the National Crime Record Bureau (NCRB) Report, almost 34,000 rapes were recorded in 2018 but due to lack of legal and scientific knowledge among medical and paramedical staff, investigating agencies and among victims, only 27.2 per cent of conviction in Rape was recorded. 

Under Indian criminal law, the prosecution can secure a conviction for rape based solely on the testimony of the rape survivor where it is “cogent and consistent” in material particulars.[8] Forensic evidences is considered legally relevant but not essential. However, judges and police give significant weightage to forensic evidences during trials, therefore necessitating the need for standardizing medico- legal evidence collection and awareness around its limitation.

However, in present scenario, the enforcing agencies are facing lack of progress in implementing laws and policies governing evidence collection in India. In 2014, the central government’s Ministry of Health and Family Welfare issued guidelines and protocols to handle sexual violence cases. 

The 2014 guidelines aim to ensure that survivors receive proper treatment in a sensitive and non-discriminatory manner respectful of privacy, dignity, and autonomy of each survivor and to standardize the collection of medical evidences in cases of sexual assault, including any requiring the patient’s informed consent prior to medical procedures.[9] This guideline also set forth scientific medical information and process to aid in correcting pervasive myths and degrading practices around rape, which are reinforced by medico- legal practices such as:

  • They eliminate the “two-finger test” by limiting internal vaginal examinations to cases where it is “medically indicated”.[10]
  • They direct doctors to conduct full-body examinations, tailoring the examination to the specific survivors after listening to her account of the episode of sexual violence, including non- penile penetrative forms of sexual violence. Such a carefully tailored approach reduces doctor’s ability to conduct cursory medical examinations based on common misconceptions about rape- the most common one being that a victim who does not “resist rape” and present signs of resistance or vaginal injuries could not have been raped.[11]
  • This also directs doctors to record the victim’s activity after rape and the time elapsed between the offense and the medical examination to document any reasons that may have contributed to the loss of medical evidence.[12]

However, country witnessed the poor implantation of this 2014 Health Ministry Guidelines in the states as health is a state subject and under India’s federal structure, the states are not legally bound to adopt the central government’s guidelines. But the central government has also not provided any efficient mechanism for adoption and implantation of the guidelines. Many states have their own guidelines, but they are completely outdated and lack the sensitivity and details of the 2014 guidelines. Hospital and medical staffs are rarely aware of these medico-legal guidelines. The Criminal Law Amendment Act, 2013 inserted non- penile penetration also under the definition of Rape.

Following this, 2014 Guidelines includes the directives for the sexual offences, not primarily penile penetration, and provided detailed guidelines on how medical opinions should be made. However, the investigating agencies still rely upon the traditional definition of the sexual assault i.e. forceful penile penetration. They are trained in a such a manner that for them only penetrative assault constitutes rapes. Even judges are also unaware or fail to adhere these guidelines. Judges need training to the understand the limitations of medical evidence. This will go a long way in curbing rape myths and stereotypes among the lower and higher judiciary especially around “resisting rape” and how such resistance can always be gleaned from medical reports.[13]

Recommendations

  • Enforce efficiently the Criminal Law Amendment Act, 2013 and policies announced to help survivors of sexual assault.
  • Better training should be given to police officers and judicial officials on the proper handling of cases of sexual violence.
  • Ensure the forensic labs are properly equipped and accessible, establish a monitoring mechanism for these centres and publish reports periodically.
  • “Develop, adopt and implement standard operating procedures that are statutorily binding and universally applicable for forensic experts and police to ensure uniformity in application and interpretation of the law and policies dealing with violence against women.”
  • Mandatory sexuality education should be introduced in schools and colleges.
  • Periodic trainings for doctors, paramedics, nurses, and other medical professionals should be hold.
  • Medical forms and consent form should be available in local languages and in easy to read accessible formats. 
  • Campaign regarding awareness of compensation scheme and rehabilitation should be run by the government with help of NGO’s so that rape survivors are aware of the provisions and the procedure to access it.

Conclusion

In today’s modern world, the scientific oriented techniques like forensic science plays a huge role in criminal trials. Forensic science is an evidence procedure which comprises several branches of science and consists of forward- thinking and contemporary medical technology.[14] It can be concluded that with the changes in crime patterns and ‘progress’ of criminals, it is necessity to hold investigations scientifically and to make all sorts of scientific evidences admissible in the court.[15] Various commissions appointed on reform of criminal justice have always emphasised that the use of technology in criminal justice system can help the system to function properly and efficiently. 

From time to time, various laws have been amended to make way for use of forensic sciences in crime investigation and trial. Providing fair justice is the ultimate goal of the criminal justice system and therefore the eminence reports from the forensic scientists shall undoubtedly fulfil the hope of the society from the forensic professionals. Undoubtedly, forensic evidences are more authentic than other evidences.

However, India is lacking in efficient involvement of forensic science in criminal system. Presently, the admissibility of forensic evidences before the court of law always depends upon its accurate and proper collection, preservation and documentation by which the prosecution can be able to satisfy the court the unbroken chain of custody of the physical sample from the time of seizure to the time of analysis. The object of law is to find the truth and not to shield the accused from the wrongdoing.[16] We need to ensure that the law enforcement and investigative communities once again recognize and use forensic science to its full potential as a holistic problem- solving tool.[17]


[1]  “India: Rape Victim’s Death Demand Action, “Human Rights Watch, news release, December 29, 2012, https://www.hrw.org/news/2012/12/29/india-rape-victims-death-demands-action

[2] Gowsia Farooq Khan, “Sheeba Ahad- Role of forensic science in criminal investigation: Admissibility in Indian legal system and future perspective” Vol. 07, March 2018

[3] U.S. Mishra, “CBI-The Role & Challenges” 13 NPAJ Vol. 57 (1 (2005).

[4] Manasi Paresh Kumar, “Tempered evidence, delayed lab reports: Why forensic isn’t leading to convictions in rape cases” Jan 21, 2020

[5] AIR 1997 SC 610.

[6] Md Shadab Raheel & A.K. Jaiswal, “Potency test of a rape accused in India- Rational, problems and suggestions in light of the Criminal Law (Amendment) Act 2013”, Vol. 6, Dec 2016

[7]Report: “Everyone Blames Me”- Human Rights Watch

[8] State of Punjab vs Gurmeet Singh, 1996 Cri LJ 1728

[9]Guidelines and Protocols, Medico-legal care survivors/victims of sexual violence, Ministry of Health and Family Welfare, Government of India, March 19, 2014.

[10] Report: “Everyone Blames Me”- Human Rights Watch

[11] Guidelines and Protocols, Medico-legal care survivors/victims of sexual violence, Ministry of Health and Family Welfare, Government of India, March 19, 2014.

[12]http://mohfw.nic.in/sites/default/file/ (accessed September 29, 2020)

[13] India1117_web.pdf

[14] Gowsia Farooq Khan, Sheeba Ahad, “Role of forensic science in criminal investigation: Admissibility in Indian legal system and future perspective” Vol. 07, March 2018

[15]   Ria Juneja, “A clarion call to combat forensic science development in criminal investigation and law” Vol. 3, Dec 2019 

[16] Mo Ajmal Mohammad Amir Kasab vs State of Maharashtra AIR 2012 SC 3566

[17]   https://ifflab.org/the-importance-of-forensic-science-in-criminal-investgations-and-justice (last visited on Oct.1, 2020)

Author Details: Saskshi Soni (NMIMS Indore)

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