The High Court of Jammu & Kashmir and Ladakh recently observed that the offence of rape can be established even if there is no injury to the genitals of the survivor or semen stains left behind by the accused. [Bodh Raj v. State of Jammu and Kashmir & Ors.]
Justices Sanjay Dhar and Rajesh Sekhri also noted that a medical expert treating a rape survivor can only certify if there is any evidence of recent sexual activity and they cannot have a final say on whether the offence of rape has been committed.
That is the task of the courts, the High Court underlined.
“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,” the Court said.
The judges explained that since rape is a crime, it is only for a court to determine whether rape within the meaning of Section 375 of the Indian Penal Code is made out or not, the bench said.
“Offence of rape can be established even without producing any injury to the genitals or leaving any seminal stains,” the bench added.
The High Court made the observation while dismissing an appeal filed by one Bodh Raj who was convicted for the rape of his one-year-old granddaughter.
On a medical examination, a doctor found that the child’s hymen had been torn and there were fresh injuries on her genitals. The doctor had initially opined that it could be a case of sexual assault, although other possibilities could not be ruled out.
Among other contentions, Raj’s counsel had argued the absence of any clear-cut opinion and the absence of semen stains cast doubt on the prosecution’s case against Raj.
However, the doctor later testified that the injuries on the child indicated that she was sexually assaulted and that there was penetration.
The High Court ultimately upheld the conviction and life imprisonment sentence imposed on Raj.
“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,” the Court observed.
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