Role of Medical Evidence

in certain offences
against women

Submitted By,
Prof. Shubhada S. Pednekar
Symbiosis Law School, Pune
1. Title of the Research:

Role of Medical Evidence

in certain offences against women

2. Introduction :

In a criminal trial, in order to zero down on the relevant facts, the judge
has to rely on the knowledge and opinion of certain experts as he may not be in a
position to appreciate the technical details involved in a particular case. Evidence
is given by the expert of the relevant field in the form of his opinion which is
based on the information that he has gathered from the facts of the case. This
evidence supplements the assertions of the judge and, together, they complement
each other and combine to from the basis of the judgment. However, the
evidentiary value of the opinion given by the expert is not unshakeable because of
the discretionary power available to the Court, which may choose to accept or
reject it. This discretionary power in the hands of the Court arises from Section 45
of the Indian Evidence Act, 1872, which, theoretically, gives a lesser degree of
importance to expert evidence by terming it as merely corroborative in nature.

S.45 of Indian Evidence Act, 1892, states as –

“When the Court has to form an opinion upon a point of foreign law or of
science or art, or as to identify of handwriting or finger impressions, the opinions
upon that point of persons especially skilled in such foreign law, science or art, or
in questions as to identify of handwriting or finger impressions, are relevant
facts.”
Such persons are called experts.

The careful reading of the section gives us a vague idea about who is an
expert, by the words – the persons especially skilled. There is no clear mention
about qualifications, experience or any particular attainment. But especially
skilled means there must be something to show that the expert is skilled and has
an adequate knowledge of the subject.

Who is an expert? -
Expert – A person instructed by experience is called ‘expert’.
Witnesses ordinarily are to testify the facts in their direct knowledge
leaving it to the judge to form opinions, inferences or conclusions on the basis of
such facts.
Witnesses are ordinarily not to say what they thought or believed to be and
therefore their opinions are irrelevant in a judicial enquiry, but in certain special
matters requiring special skill in the subject concerned, opinions of persons having
special study, training or experience are accepted as evidence.
 Expert evidence in a criminal trial would be just a fraction of the totality of
the evidence on the appreciation of which the judge takes decision. The Court
takes into account all the other evidence at hand along with the opinion of the
scientific expert, which is just one piece of evidence required to be taken into
consideration and appreciated for its evidentiary value.

An expert witness is not a witness of fact. His evidence is really of an

advisory character. The duty of an expert witness is to furnish the judge with the
necessary scientific criteria for testing the accuracy of the conclusions so as to
enable the judge to form his independent judgment by the application of such
criteria to the facts proved by the evidence of the case.

Importance of Medical Evidence –

Medical knowledge is a specialized form of knowledge. A layman may not

be in a position to have medical knowledge without proper education and training.
The knowledge of the medical expert is always essential in the criminal justice
system. The expert evidence given by a medical person comes to the help of the
Court in deciding various matters. Particularly, in case of death of a person,
medical evidence is inevitable. Such evidence can be obtained through post-
mortem report. The importance of the post-mortem report is as a tool in the hands
of the prosecution. It becomes useful to decide the guilt of the accused.

The inter-action between Medicine and the Law has played the main role
in the recent years. Medical science gives clue as to how the death of the person,
how the injury, was caused, while the law prosecutes a person for killing and
injuring other. The postmortem report, examination of wounds, chemical analysis,
the expert reports are admissible in the Court as an evidence according to our legal
system. The three main statutes, the Criminal Procedure Code 1973, the Indian
Penal Code (Act 45 of 1860), and Indian Evidence Act 1872, regulate our legal
system in the area of criminal justice and Criminal Jurisprudence.

The importance of Medical Evidence at present is an increasing tendency.

The medical evidence includes doctor’s report of examination, chemical analysis
report, serologist, DNA (Dioxy-ribo-Neuclic Acid test)

In a trial where injury or death is involved, or for an offence of causing

hurt to a human body, the opinion of medical man is sought for ascertaining the
cause of death or injury or to determine as to the injuries are anti-mortem or post-
mortem, probable weapon used, the effect of injuries, medicines, poisons, the
effect and consequence of wound whether they are sufficient to cause death in the
ordinary course, the duration of injuries and the probable time of death. In the
same way while the offence or trial of kidnapping and rape the medical opinion is
adduced to establish the fact that the girl is minor, whether rape was committed
under influence of liquor, medicine or intoxicant, threat by using weapon, to
extent injury on private part of prosecutrix and that of accused, or if death is
caused by excessive force used by the accused to the minor child etc.1

1
Medical Jurispudences : HWV cox & Jhala and Raju : Eev Act S. 45.
 Gibson J. cited VII Wigmore p.12 and Cross, Evidence, 329 (1958) that “It
is a general rule that a witness is not to give his impressions, but to state the facts
from which he received them and leave the judge to draw his own conclusions.
But wherever the facts from which a witness received an impression are too
evanescent in their nature to be recollected or are too complicated to be separately
and distinctly narrated, his impressions from these facts become evidence.”2

Ordinarily medical evidence is corroborative evidence. Expert evidence

alone will not convince the Court beyond reasonable doubt that a particular person
is guilty of a crime. Where the medical evidence describes the injuries and the
same corroborated, the former can be relied upon –

This was clearly summed up by Justice Monir (as he then was) in his
principles and Digest of the Law of Evidence where he states that ‘when a medical
person is called as an expert, he is not to witness the facts, because his evidence is
not direct evidence of how an injury in question was done. He gives his opinion
only on how that, in all probability was caused. The value of such evidence lies
only to the extent it supports and lends weight to direct evidence of eye-witnesses
or contradicts evidence and removes the possibility of the injury in question and
could take the manner alleged by the witness.’

Although the substantive evidence case is that of the eyewitnesses who

seen the incident, expert evidence has corroborative value. The medical evidence
used to discredit the witness account and to show that they could not possibly
have been caused in the manner alleged by the prosecution.

With the help of decided cases, the role of medical evidence, especially in
cases of grave offences against women is proved to be inevitable. The opinion of
the doctors based on their knowledge as of at most importance in proving the case
of the prosecution. But, if the provisions of the Evidence Act are taken into
consideration, medical evidence is not direct evidence.

It becomes necessary in each and every case where the expert evidence is
admitted to check and counter-check it by producing the expert witness before the
court. Without examining the expert witness, his evidence may become
inadmissible.’3

The Rule of accepting expert evidence –

Expert evidence is regarded as opinion evidence. Sometimes it may
happen that such an opinion points out total improbability of a certain event and at
the same time direct evidence is showing that the event actually happened. Now,
as per the general rule, direct evidence is always admissible this rule will not be
made applicable Direct evidence may be discarded on the basis of opinion
evidence. Where the direct evidence is doubtful and it is improbable because of
the expert evidence then also the Court may not accept the both.

2
Dr. Avtar Singh, Principles of the law of Evidence, 18 th Ed. 2010, Central Law Publications,
Allahabad.
3
Hanishi K. Thanawalla (1996) , “Development and Liberalisation of Hearsay doctrine”,
Journal of the Indian Law Institute, Vol 38.1
 It means that the expert evidence though valuable, though scientifically
proved to be correct, it always should go hand in hand with other type of
evidence.

How far the judicial precedence prove the importance of medical

evidence? –
Practically, the Court have always accorded due importance to expert
evidence and there are a plethora of judgments to substantiate this point. In cases
of grave offences committed against women, such as rape, murder and dowry
burning, the role of medical evidence becomes crucial. Medical evidence may be
able to ascertain the cause of death but it is not possible to pinpoint with precision,
the exact means by which the cause of death was set into motion. The above
discussion highlights the indispensability of medical evidence in criminal trials
involving grave offences committed against women.

The role of a medical man, in law, is to help in the administration of

justice. It is natural that in the course of his professional duties, he frequently
enters the arena of law, in examination of cases for age, the examination of
injuries on the body of a person rape, sodomy etc. He has to examine cases of
poisoning, as also to observe and certify persons regarding their sanity or
insanity.4

How the medical evidence is regarded as corroborative evidence? -

Expert evidence is always regarded as only corroborative evidence. Direct
evidence has to be taken into consideration as a primary proof of evidence.
Especially, whenever oral evidence is give, medical evidence should support it.
But when there are inconsistencies in the oral and medical evidence the whole
case set by the prosecution becomes suspicious, and then the conviction of the
accused becomes unsafe.

As direct evidence is inevitable to prove the offence beyond reasonable

doubt, opinion evidence gets secondary importance. Both direct evidence and
opinion evidence should go together, coordinate with each other, then only the
care of the prosecution becomes stronger and the possibility of the conviction of
the accused is increased.

The medical evidence is always regarded as opinion evidence and has its
importance as expert evidence. But, one can not deny the value of direct evidence.
Direct evidence is undoubted and accordingly the medical evidence is
corroborative evidence. It should not go against the direct evidence. It does not
mean that when there is a contradiction between direct evidence, e.g. evidence by
an eye witness and medical evidence, the authenticity of medical evidence is
questioned. The value of medical evidence is accepted as evidence by an expert,

4
Dr. P.K. Bhattacharji (1998), ‘Medico-Legal Companion’ , 2nd Ed., Allahabad Law House,
p.276.
but the prosecution case when weakened; the Court may not be able to convict the
accused.

The researcher is interested to solve certain questions through his research

and wants to relate his research work on the following points. Till now, the courts
are able to cope up with the task of evaluation of expert evidence. In accepting the
expert evidence, the judge requires application of mind and appreciation of the
opinion of expert. The expert evidence as it is not binding on the Court. It means,
the judge may accept it or may reject it.

Now, the scientific evidence, being perfect one should not create any
problem for the Courts, as to admit the evidence or not. The question of
admissibility of evidence will not come before the Court. At the same time there is
no need for the evaluation of the intelligible expert scientific evidence. Now, the
courts will show their readiness to learn the nature of the scientific evidence. As in
case of DNA evidence, the claim is of 99.9 % accuracy, the Court will not be
reluctant to accept such evidence. It means the opinion of the expert giving
scientific evidence is as if mandatory on the Court to admit. The Court should be
cautions in applying the expert evidence by determining the factors, as expertise
of the expert, his qualifications, experience etc. At the same time, the Court
should see in which circumstances the expert scientific evidence should be
allowed when the issue before the Court is of such a nature that may not be any
need to take scientific evidence, the court may not allow such evidence.

Though the scientific evidence plays an important role in the courts, the
Courts also can demand better scientific evidence with improved methods for
proper interpretation of results. It is the duty of the court to examine the contents
of the report. While presenting the evidence the court and the lawyers can make a
search through questions to the experts. The courts can encourage the expert and
can recognize and suggest new methods of providing evidence in the Court of
Law.

In the last decade, for the sake of giving special protection to women many
laws are passed and changes and amendments are made in the legislation. In
Indian Penal Code and in Criminal Procedure Code, certain section such as
S.304 A, S.498 A are added. However, the provisions of the Evidence Act have
not been amended. In cases of grave offences against women, the woman is in
helpless position because of her physical incapability. When the rape is committed
against a woman, the availability of direct evidence is zero, most of the times. As
such in cases of murder of the wife more particularly, again the offence is
committed in the four walls of the house. In such cases, the medical evidence
plays a crucial role; in the absence of direct evidence. The vulnerability of the
woman extends to such a level that her caretaker can take benefit of his position
and she has to fall pray to his violence. Though the prosecution files the case with
enthusiasm to convict the accused during the investigation trials because of lack of
direct evidence, the prosecution case becomes weak.

The legislature could not anticipate tremendous development of modern

science. DNA technology can revolutionize the criminal justice system. The code
 of criminal procedure (Amendment) Act 2005 incorporated new sections. S.53 A
& S. 164 A relating to collection of DNA samples. S. 53 A authorizes the
investigating officer to collect DNA samples with the help of medical
practitioners from the person accused of a rape case. S. 164 – A authorizes the
investigating agency to collect DNA samples from the victim of rape with the
consent of such woman. However, these provisions are not enough to meet the
challenges before the court. There is a need to enact a special law relating to DNA
technology.

There is a possibility of having a conflict between right to privacy and

DNA testing, however it can be minimized by legislating proper laws, taking into
consideration the examples of other developed countries.

The Government of India is a signatory to Universal Declaration on the

Human Genome and Human Rights 1997 and the Indian Parliament is duty bound
to make appropriate legislation and necessary amendments for the purpose of
controlling the accessibility, standard, quality and confidentiality of the genetic
DNA information in administration of justice of our country.5

In the Law Commission 185th Report – It is mentioned that there is a need

to insert the words in S.45 of Indian Evidence Act as ‘identify of persons or
animals’. DNA may be more useful for purposes of investigation.

In one of the article, the questions were raised to J. P. K. Batri, Former

Judge, Delhi High Court, answered the question – that the Commission observed
that there is no need to provide a specific mention to include ‘DNA’ evidence
under the Act – What is your opinion about? He stated that the amendment is
definitely awaited. The legislative has to intervene in this regard to say that DNA
should be taken as evidence. I think, DNA test should be included in the Evidence
Act as a vital amendment.6

3. Objectives of the Research :

In this research, the main objective is to analysis the role of medical

evidence in Criminal Justice System in India. For this purpose, the researcher has
an objective to analyze the role of the evidence given by a medical expert while
dealing with the prosecution case. The medical evidence is regarded as opinion
evidence plays an important and indispensable part of the evidence, particularly in
cases of offences committed against women. A special reference can be given to
rape cases, murder cases and dowry death cases. The researcher is intending to
take help from the judgments of the Supreme Court of India and various High
Courts in India in context of offences committed against women. Ultimately, the

5
An article by Dr. Jyotirmony Adhikary, Legislation on DNA Evidence– A proposal 2008 2
SCC J 24
6
Lex Witness, Vol.2, Issue 7, Feb.2011, pg.no.14, Reviewing the Indian Evidence Act, 1872.
 researcher is intending to give the suggestions to give more importance to medical
evidence than it is accorded under the present Act.

a. To understand the value of evidence given by the medical expert.

b. To mention the importance of the evidence of medical expert in Criminal

system in India particularly in cases of offences committed against
women.

c. To know the attitude of different High Courts of India, about evidence

given by medical expert through various judicial decisions.

d. To suggest changes to enhance the evidentiary value of medical expert.

e. To understand the role of medical evidence particularly in cases of

offences against women.

f. To understand the uses and impacts of medical evidence in cases like rape
and dowry deaths, and to observe whether there is any possibility of
increase the importance of medical evidence in such cases.

4. Methodology :

With the advent of science in every field there is a necessity to examine

the expert knowledge in witnessing. For this research the method primarily used is
doctrinal method.
Print material is the primary form of instructional material. There are 2
types of materials that have to be reviewed.
1) the literature concerning the concepts & theories
2) empirical literature consisting of studies made earlier.

5. Nature of Information Needed :

It was necessary to identify the topic and the field in which research has to
be made after having a general idea about the field. The field work started i.e. data
collection. Here, the data collection is necessarily secondary data which is
collected from the library particularly and from the computers. The books
collected and literature reviewed gives a better idea of the topic and the scope of
the research.
This research is a type of descriptive research; because the researcher
wants to describe the situation in detail, with the help of different statutes and
judicial decisions. This research adds to our knowledge but it doesn’t stop there, it
continues in the form of explanatory research.
 The main source of data is secondary source of data. This research is
primarily a doctrinal research. The sources of secondary data are books, journals,
reports and websites. The secondary data provoked thinking of the researcher and
helped him to develop appropriate procedure.

6. Type of Approach :

Science, research and scientific methodology are the pillars of our society.
Research in the field of social sciences is different from the research in the field of
natural sciences. There are 3 approaches to research.
1) Positivist approach
2) Interpretative approach
3) Critical approach

Here, the researcher wants to follow all these approaches in doing his
research. The researcher states the statutory provisions as they stand, tries to
interpret them and ultimately wants to criticize the statutory provisions and gives
certain suggestions, such as amendments in the existing legislation or enactment
of new laws, because the social, cultural and other factors have their impact on the
judicial decisions. Society changes constantly because of the conflicts and
contradictions which are rooted in the society.

7. Significance of Research Topic :

The law is always developing to deal with new fields of expertise. In the
field of medical science and technical field, there are fast developments in last few
years. Taking into consideration these developments the laws should be well
equipped with the use of scientific knowledge. When generally one speaks about
expert testimony, it is in the form of opinion. The accuracy of knowledge in the
new scientific era may make it mandatory for the courts to accept the opinions as
conclusions.
There can be different types of cases where expert’s evidence is
admissible. One in which the court has to depend on the existence of facts which
are not known to the common person or which are not a part of common
knowledge and hence it becomes necessary to take the help of those, whose
knowledge, experience or study enables them to speak with authority. In some of
the cases it becomes necessary to draw the conclusions from the stated facts,
which totally depend on scientific or professional knowledge and which is not
possible to draw by ordinary intelligence.
In some of the cases, the facts are to be stated by the experts and the
conclusion is to be drawn by the judge, in other type of cases, the expert states the
 facts, draws the conclusion, in the form of opinion and the opinion may be
accepted or rejected by the court.

8. Research Problem :

The evidence presented before the Court has its own value. The
technological advancements and changes in the scientific field and the social
structure have to be taken into consideration by the legislature. This research tries
to provide information to understand the precise nature of the problem in Criminal
Justice System and to plan a response to it.

The research problem is –

What is the role of medical evidence in the Criminal Justice System in India?

How far the judicial precedence proves the importance of medical evidence?

How the medical evidence is regarded as corroborative evidence?

In the cases of offences against women, more particularly rape, murder or dowry
deaths, whether it is possible to accord due importance to medical evidence, to
regard it as absolute piece of evidence, in the light of Scientific advancements?

9. Scope of the Research :

The researcher wants to mention that this research is not a comprehensive

one. For the sake of understanding the role of medical expert witnessing, the
comparative study of different countries is necessary. But due to the constraint of
literature and limitations of the researcher to collect such literature, this research is
not able to give a comparative approach.
Expert evidence is inevitable in criminal cases and accordingly the
Government has established laboratories in the country and other institutions in
the country are offering scientific service in the administration of criminal justice,
but due to the time constraint & fear of broadening the scope of the research, the
researcher has put the limitations on the research.

10. Motivation for the Researcher :

 The researcher has always an interest in criminal justice system and
specifically in women related issues. In the course of time, the researcher is
motivated by the provisions of Indian Evidence Act. In the prosecution case the
prosecution submits the evidences to prove the crime of the accused and the judge
gives the judgment accordingly. In between these two processes one important
thread is connected and that is the expert evidence. Evidence presented in the
Court by the experts such as medical expert must be of great importance. It is
based on scientific knowledge which may not be easily accessible or available to
the persons having no technical knowledge, including the judges and so the
opinion of the medical expert is always have an evidentiary value.

11. Contribution of the Researcher :

The researcher wants to make a contribution to the criminal justice system,

because the medical expert’s evidence is regarded as opinion evidence, giving
least importance to it, but the researcher’s suggestions will give value to the
evidence of the medical expert, more particularly in certain offences as rape and
dowry death.

12. Literature Review :

1. Edward Phillips, Brief case on Law of Evidence Ist 1996, Cavendish

Publishing Limited, London.

This book is a summary of the most essential cases, in Law of

Evidence. This book is not a text book, but useful for the Law students to
read with the text book. The book contains the cases in Great Britain
particularly. They are useful for the researcher because the Indian Law of
Evidence is much similar to English Law. The Evidence Law in England
has undergone legislative reforms in the course of time and Civil Evidence
Act of 1995 was passed. The note of the changes are a part of this book.
Indian Evidence Act 1872 has not undergone any changes in all
these years. The reflections of the changes in the cases mentioned in the
book is an inspiration to the researcher.
This book is invaluable concise guide on the complex subject and
interesting and highly relevant.

2. Vepa P. Sarathi, Law of Evidence, 6th Ed. 2006, Eartern book company,
Lucknow.

The author has his original approach to the subject of evidence and
the clarity in the exposition of the principles.
 The author took a reference from English and Indian decisions and
extracts from the Judgments are set out to illustrate the principles of the
subject.
The author wrote this book with the intention to solve the
difficulties of the students on this subject, being a law teacher and
ultimately expressed his own opinions on the subject.
The best part of the book is that it is not section by section,
commentary method, but the author explained the scope of the rule in the
language of the Judges of the Supreme Court of India, or of Privy Council.
The comprehensive and legal terminology has been discussed in a
simple and lucid manner. The author’s contributions will lead a path for
my research work.

3. Dr. Avtar Singh, Principles of the Law of Evidence, 18th Ed. 2010, Central
Law Publications, Allahabad.

This book is an introduction and study of the principles of Law of

Evidence. The author in this book admires the success of the Act for more
than a century. Still some provision may be redundant and so to be
removed or some suggestions to provide some new material in the act, to
be introduced according to the author.
The author has put down all current updates in his book which is
helpful for the research.

4. R.V.Kelkar, Lectures on Criminal Procedure, 4th Ed.

2006, Eastern Book Company, Lukhnow.

This book is the section wise commentaries supported by relevant

case law. The author has arranged lectures topic wise and in their logical
order, a feature rarely found amongst the commentaries on the Code of
Criminal Procedure. He has included under each topic all the connected
provisions and explained the matter in a precise and easily understandable
way.
The researcher feels that this book will develop proper perspective
on the various provisions of the Code of Criminal Procedure. The efforts
have been made to focus attention on the basic principles of criminal
procedure and also on the interaction of the different statutory provisions
through which these principles operate in practice.

5. K.D.Gaur, Criminal Law : Cases and Materials, 6th

Ed. , Lexis Nexis , Butterworths, Wadhwa, Nagpur.

This book is an exercise to project the legal principles applicable to

a given set of facts. This book teaches us the legal principles through case.
This book is an excellent commentary on the Indian Penal Code. This
 book includes recent landmark judgments on criminal law of various
countries.
For the researcher, this book gives a separate chapter on Crime
against women.

6. Ish Kumar Magoo, An Eagle Eye on Dowry

Demand Cruelty & Dowry Death, 1st Ed. 2004, Capital Law House, Delhi

7. Pillai PSA, Criminal Law, 10th Ed. 2008, Lexis

Nexis, Butterworths, India.

8. B.S.Nabar, Forensic Science in Crime Investigation,

3rd Ed. 2010-11, Asia Law House, Hyderabad.

9. R. S. Verma and Thockchom IBS, Commentary on

Rape, Kidnapping and Abduction, 1st Ed. 1999, Verma Publication, Delhi.

10. Law Commission of India 172nd Report - Review of

Rape Law Government of India, 2000, para 3.1.2

11. The Malimath Committee Report on Reforms of

Criminal Justice System 2003

12. An article by Dr. Jyotirmony Adhikary, Legislation

on DNA Evidence – A proposal 2008 2 SCC J 24

13. An article by K. Kumar, The Expert and the Law

Court, 1987 4 SCC J 7

14. An article by Nidhi Tondon, The Journey from One

Cell to Another, Role of DNA Evidence

15. Janice Du Mont and Deborah White, The uses and

impacts of medico-legal evidence in sexual assault cases : A global review,
publication 2007, World Health Organization, Sexual Violence Research
Initiative, printed in Switzerland.

16. Online Databases –

Manupatra
Westlaw
 SCC Online

17. http://www.manupatra.co.in/nxy/gatawaxd/II SC
2007

18. http://www.atc.gov.au/publications/proceedings/02/
Philips.pdf