LI Network
Published on: 18 August 2023 at 12:40 IST
The High Court of Jammu & Kashmir and Ladakh has recently underscored that establishing the offense of rape does not necessarily require the presence of genital injuries on the survivor or semen stains left by the accused. In the case of Bodh Raj v. State of Jammu and Kashmir & Ors., Justices Sanjay Dhar and Rajesh Sekhri delivered this observation.
The Court also emphasized that a medical expert treating a survivor of rape can solely certify the presence of evidence indicating recent sexual activity. However, they lack the authority to conclusively determine whether the act of rape has occurred. This determination falls within the jurisdiction of the courts.
The Court firmly stated, “Rape cannot be diagnosed by a doctor. A medical expert treating a rape survivor can only certify about any evidence of recent sexual activity. It is none of his business to opine whether rape is committed or not. Rape is a judicial determination.”
Elaborating on this, the judges elaborated that the determination of rape, being a criminal offense, is exclusively within the purview of the court. The bench stressed that the judicial assessment of whether the conditions outlined in Section 375 of the Indian Penal Code constitute rape or not is paramount.
Furthermore, the High Court reiterated that the offense of rape can be substantiated even if there is no evidence of genital injuries or the presence of seminal stains. This observation arose within the context of dismissing an appeal filed by Bodh Raj, who had been convicted of raping his one-year-old granddaughter.
Initially, a medical examination revealed that the child had incurred injuries to her genital area, indicating possible sexual assault. Although the doctor’s preliminary opinion suggested this, further possibilities were not ruled out.
During the proceedings, Raj’s legal counsel contended that the ambiguity stemming from the absence of a definitive opinion and semen stains raised doubts about the prosecution’s case against Raj.
However, the doctor’s later testimony firmly indicated that the injuries sustained by the child were indicative of sexual assault and penetration. Ultimately, the High Court upheld Raj’s conviction and life imprisonment sentence.
In addressing the matter, the Court noted, “The doctor has clearly opined that given the injuries found on the victim, it was surely a case of penetration. In such circumstances, absence of seminal stains pales into insignificance and would not come to the rescue of the appellant.”
