Written by Trisha Garimala
Junior Editor at Law & Order
Third year student, OP Jindal Global University
Source: Outlook India
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The Indian Penal code lays down a definition as well as a metric of what constitutes rape under Section 375. While the most notably horrifying case was that of the 2012 Delhi rape case, the outrage ensuing the same seems to have no effect on the way our country deals with crime management. Rape cases in India saw an alarming increase from 2919 in 1973 to 32260 in 2019.  As of 2011, the conviction rate had dropped by 18% while 2012 had only one conviction. While the process leading to a conviction in a rape case is multi-faceted, medical examination and the ensuing scientific evidence play an important role i.e., the examination, collection, handover, storage, testing, results as well as other influencing extraneous factors.
As given in the cases of State Of Punjab vs. Gurmeet Singh; Madhan Gopal Kakkad vs. Naval Dubey; Bharwada Bhoginbhai Hirjibhai vs. State Of Gujarat, while medical evidence is not decisive, it plays an important corroborative role to prove the act as well as trace a link to the accused. This article seeks to critically analyse the process involving the procurement and handling of scientific, forensic evidence at all stages of investigation and due process of a rape case in order to examine the efficacy, pitfalls as well as developments vis-à-vis these cases and establish the role that scientific evidence has to play in the rate of conviction.
The Prescribed Process Of Examination And Forensic Evidence Collection:
Section 53 and 53A of the Criminal Procedure Code set out the medical examination of the victim and the accused respectively. Prior to the testing of any evidence, an order of procurement as follows is carried forth – Firstly, the victim is made to undress upon a drop sheet top-reserve trace evidence, these clothes are placed in individual paper bags. This drop sheet might also possess evidence of the offender such as pubic hair, hair or clothing fibres. The drop sheet might also possess evidence from the scene of the crime. It is folded and placed in a sealed bag. Secondly, in the case of fingernail scratching by the victim is alleged, in order to check for DNA or fibres, a swab stick may be used and placed in a jar with the remnants or the fingernail itself may be cut and preserved. In order to facilitate comparison, twenty head hairs are cut and preserved within folded paper. In cases of allegations of oral penetration, oral swabs may be collected. Skin swabs are collected to detect the assailant’s DNA or traces of semen. Further on, vaginal, endo-cervical, anal and rectal swabs are collected. Blood is also drawn within appropriate tubes to test for DNA as well as drugs. Parts of the body likely affected by sexual offences of both the victims and the accused are thereon examined. However, in the interest of further understanding of the legal evidentiary value of these findings, while the discovery of semen in the vagina of the victim proved rape had taken place in several cases as acknowledged in the case of Jairaj vs. State of Karnataka, such discovery on the clothes of the victim do not establish penetration sans other forms of supporting evidence as recognised in the case of State of Orissa vs. Musa 
In accordance with Suresh Kumar Singh, in re, this examination however comes with a time constraint of 24 hours within the occurrence of rape as any time post this limit will result inconclusive and meaningless.
While this paper does not extensively deal with the intricacies of DNA testing, it is pertinent to mention that it is the most widely employed method of forensic investigation in a rape case both in terms of inclusive, exclusive or in cases inconclusive findings. Section 125 of the Criminal Procedure Code allows for DNA evidence. Though Indian courtrooms do not attempt to defy the scientific accuracy of DNA evidence, it remains corroborative in nature to the case. 
However, considerations to be taken into account while conducting a forensic examination are the fact that “semen samples are hardly found post 6-24 hours and 72 hours in case of assault cases in the oral cavity, vaginal cavity and anorectal area respectively” 
“Due to lack of cervical mucus the lifespan of semen is relatively shorter in pre-pubertal females” This places a wider emphasis on the protection of such evidentiary samples from contamination, degradation and loss along with efficient packaging and storage. Carelessness or ignorance of proper handling procedures can result in a sample unsuitable for analysis and in the acquittal of a perpetrator.
Collection And Examination Of Samples- Indian Context:
Problem areas at different stages of investigation
To put within the context, the general shortfalls surrounding samples from rape cases are – Firstly, the delay in reporting of a case, due to the stigma and shame we as a society attribute to the victim, most cases are reported after 5 or more days reducing the probability of viable collectable samples.
Secondly, an inadvertent delay in the examination of these samples is caused by improper management or limited manpower at laboratories.
Further , even with the advancement of technology, samples come with a degradation rate , whereby these delays reduce the viability of samples leading to a reduction or even an impossibility of arriving at conclusive results. For instance, DNA sample may stay feasible in the vagina, for up to 12 hours and from vaginal fluid up to 7 days when preserved in favourable temperature while saliva samples are feasible only for 5 days without distorting the amylase necessary for the test. Blood swabs on the other hand were found to be 50% degraded within a period of 15 days. 
At this juncture, it is pertinent to take a closer look at the problem areas that plague the Indian system of forensic investigation. It is recognised that, despite the strength of the case, a poorly written medico-legal report affect the prosecution’s case to a large extent in a rape trial. The 2006 amendment sought to explain previously vague terms such as ‘intercourse’ and ‘harm’ in more specific detail in order to aid both investigation and examination of evidence. Section 164A was inserted seeking to regulate , restructure and lay down the procedure for a medical examination. Even when survivors overcome the stigma and present themselves for examination, there is no standard procedure existent even after the 2006 Amendment along with localised initiatives like that of the Indian Medical Association, they lack proper enforcement instituting a grey area in terms of a tested uniformity that will allow for consistent forensic examination and testing.
Most of the time , forensic experts find themselves stuck at inconclusive results as a result of ill-trained and under-equipped doctors who are meant to collect evidence approaching it as a superficial investigation with inconsistent documentation , mechanically carrying out their obligation.
In the context of a lack of standardised examination approach , we as a country are still plagued by the archaic two-finger test. This test is conducted at the preliminary level of examination by doctors who are to insert two fingers into the vagina of the victim , to check if the hymen is intact as well as the ease with which they are able to do so. The results of this exam is supposed to allow the assumption that the girl is habituated to sex(or not). This unscientific and degrading test not only continues to place stigma and trivialise the experiences of sexually active victims but also allows for the functioning of the inherent cognitive bias towards these victims. It allows for the bias to function at the level of the police who carry out the investigation as well as the forensic experts who conduct the tests in validating the claim to rape, allowing for doubts to be cast on whether a sexually active victim can be raped succumbing to the stereotype. The court in the case of Lillu @ Rajesh vs. State of Haryana affirmed the fact that this test , even if affirmative , cannot ipso facto , give rise to the presumption of consent. Though legally recognised and banned , the continued usage of this test behind closed doors casts the shadow of bias upon the investigation.
In order to cast a lens on the delays surrounding forensic operations in India and examine a real time case ad rem, it is of paramount importance to point towards the devasting Satyama Dubey vs. Union of India, infamously known as the Hathras rape case wherein a 19 year old Dalit girl was gang raped and brutalised in Uttar Pradesh. The Forensic examination was conducted eleven days after the incident and, subsequently, ruled out rape. The Police also hastily cremated the body , ignoring the family’s protests in open ground at 2:30 am in the night. It is pertinent to note that the prescribed period for examination for accurate results in cases of sexual assault is 72 hours. The delay in the examination is attributed to the fact that both the clinic she was first admitted at as well as JNMC hospital where she was subsequently transferred lapsed in their obligation to conduct a medico-legal exam and collect samples. 
Samples which are 11 days old may not show the presence of semen because of urination, defecation and menstruation. The victim’s post-mortem report from Safdarjung hospital where she ultimately lost her life , stated indications of healed and old tears unclear whether of what the victim went through. Since the body was cremated by the police , the possibility of a second examination is also negated.  The case brought along the potential for cognitive bias by investigating agencies owing to the fact that the victim belonged to the Dalit community leading to a lesser standard of due diligence and care attributed to the testing process.
Apart from delays , the rape cases of 2013 in Badarpur and of 2012 in Samaypur Badli saw a deliberate tampering of samples by forensic officials involved in order to give undue benefit to the accused persons in the case. This case against the officials for manipulating forensic evidence surfaced much later in 2019 . The striking problem that we see is the blatant faith put into the forensic department without considerations for fool proofing the investigation system by mandating peer verifications  as well as establishing valid reliability standards to be followed and applied to prevent such lapses in the system.
While the paper puts in perspective limited cases, the error however is systemic as sub-optimal forensic investigations have plagued the country’s conviction rate with a significant increase in the pending cases. The case of State Through Jagajevanramnagar vs. Firoz @ Jaggur lays emphasis on the fact that in cases of rape, “forensic evidence is heavily tampered with and entire prosecutions have failed only because of the fact that the doctors have tampered with the medical records or even been bold enough to come to Court and brazenly give evidence in favour of the accused”.  Despite the time sensitivity attached to forensic examinations , India displays a serious lack of forensic laboratories for “gathering, documenting and analysing biological samples such as DNA and physical evidence.” The country houses a mere 4 central and 25 state forensic laboratories whereas only 5% of medical institutes can accommodate rape forensic investigations. Additionally, more than 16% of 9000 pending files in the central forensic science laboratory (CFSL) are rape cases.Further , most laboratories suffer from delays in receiving samples as well as contaminated samples largely owing to the poor state of maalkhanas in police stations that house such evidence.
The case of the State of Uttar Pradesh vs. Subash Chandra Jaiswal and ors recognises the failure on the part of the government to provide “competent investigating staff and forensic testing facilities at the district level that seriously hampers bringing the culprit to court and subsequent effective prosecution”.
In light of the aforementioned examination of the issues that forensic testing as an aftermath of rape cases in India , the National Human Rights Commission issued a standard operating procedure to ensure proper collection and handling of forensic evidence in cases of sexual assault and rape. The SOP was instituted in recognition of the fact that there are substantial delays in medical examinations, delays in sending the exhibits to the forensic laboratories causing deterioration of samples unsuitable for examination ultimately leading to mishandling of justice. Additionally, Guidelines on Forensic Medical Examination in Sexual Assault Cases released by the Central Forensic Science Laboratory in 2018 and a similar set released by the Ministry of Health and Family Welfare seek to set forth recognised standardised measures for collection, storage and preservation of forensic evidence.
Concurrently , we see the further need to cater to the abysmally low infrastructural and human resources in the forensic investigation sector. The need to enforce and implement the plethora of governmental standards in this sector is of foremost importance. In order to obtain a holistic view of the functioning of forensic examinations , it is pertinent to recognise and curb the potential for the acting of cognitive bias by investigating agencies which ultimately contributes negatively to the process of forensic examination. This bias coupled with the potential to tamper with unsecured evidence in a society that is plagued by intersectional hierarchies wherein the least privileged find it extremely difficult to pin charges on the more privileged perpetrator form an indispensable part of the measures that are required to restructure forensic examination in India. Additionally to bring about change in the status quo of preliminary problems that affect such investigations , the usage of ‘Sexual Assault Evidence Kit, Uniform Protocol and Manual’ or similar instruments , sensitivity training for doctors responsible for collecting evidence as well as the police, improvement of localised evidence storage facilities and derailing the stigma attached to the victim are some surface level solutions to increase the effective usage of forensic evidence in rape cases within Indian courtrooms.
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1. The Indian Penal code,1860, § 375 , No.45 , Acts of Parliament , 1860(India )
2. Criminal Procedure Code, 1974 § 53 , No.2 , Acts of Parliament , 1974(India )
3. Criminal Procedure Code, 1974 § 53A , No.2 , Acts of Parliament , 1974(India )
4. Criminal Procedure Code, 1974 § 125 , No.2 , Acts of Parliament , 1974(India )
5. State Of Punjab V Gurmeet Singh 1996 AIR 1393
6. Madhan Gopal Kakkad V Naval Dubey 1992 SCR (2) 921
7. Bharwada Bhoginbhai Hirjibhai V State Of Gujrat 1983 AIR 753
8. Jairaj v state of Karnataka ILR 1986 KAR 1460
9. State of Orissa v Musa 1991 CriLJ 2168
10. Suresh Kumar Singh, in re 1991 Cri LJ 859 (Mad)
11. Lillu @ Rajesh v State of Haryana (2013) 14 SCC 643
12. State Through Jagajevanramnagar ... vs Firoz @ Jaggur 1999 (1) ALD Cri 144
13. State of Uttar Pradesh v Subash Chandra Jaiswal and ors 2017 (5) SCC 163
14. Sharma, P., Unnikrishnan , M.K. & Sharma , A., 2015. Sexual violence in India. Health
Policy and Planning , 30; https://www.jstor.org/stable/10.2307/48508671
15. Anon, 2019. Table 3A.3 Women & Girls Victims of Rape (Age Group-wise) - 2019; https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.3_2.pdf
16. Yadav, M., 2016. LEGAL ANALYSIS OF COLLECTION OF RAPE EVIDENCE. Galgotias Journal of Legal Studies, IV; https://www.galgotiasuniversity.edu.in/pdfs/2-Legal-Analysis-Collection-Rape-Evidence-Manish-Yadav-27218.pdf
17. Anon, 2018. Collection of rape evidence in India – an analysis. Forensic Research & Criminology International Journal; https://medcraveonline.com/FRCIJ/collection-of-rape-evidence-in-india-ndash-an-analysis.html
18. Magalhães, T. et al., 2015. Biological evidence management for DNA analysis in cases of sexual assault. The Scientific World Journal, 2015, pp.1–11.
19. Singh, P., 2019 The role of police and the use of forensic tools in the; https://bprd.nic.in/WriteReadData/userfiles/file/202002260600325024399Thesis-Dr.PriyankaSingh.pdf
20. Ballantyne, K.N., Edmond, G. & Found, B., 2017. Peer Review in forensic science. Forensic Science International, 277, pp.66–76.
21. Pitre, A. & Lingam, L., 2013. Rape and Medical Evidence Gathering Systems: Need for Urgent Intervention. Economic and Political Weekly , 48; https://www.jstor.org/stable/23391250
22. Pitre, A., 2005. Sexual assault evidence kit protocol - cehat.org; http://www.cehat.org/go/uploads/Safekit/safekitprotocol.pdf
23. NCRB (National Crime Records Bureau),Crime in India: 2011 Statistics, 2011 Ministry of Home Affairs, Government of India. http://ncrb.nic.in/CD-CII2011/Statistics2011.pdf
24. Anon, 2015. Dignity on trial. Human Rights Watch; https://www.hrw.org/report/2010/09/06/dignity-trial/indias-need-sound-standards-conducting-and-interpreting-forensic#
25. Ara, I., 2020. Hathras gang-rape and murder case: A Timeline. The Wire; https://thewire.in/women/hathras-gang-rape-and-murder-case-a-timeline
26. Sinha, J., 2020. FSL report (saying no rape) used samples 11 days old, has no value: Aligarh CMO. The Indian Express; https://indianexpress.com/article/india/hathras-case-fsl-report-saying-no-rape-used-samples-11-days-old-6703136/
27. Vasanthakumar, V. et al., 2020. Hathras rape case: Three steps India should take to ensure that rape survivors actually get justice. The Leaflet; https://www.theleaflet.in/hathras-rape-case-three-steps-india-should-take-to-ensure-that-rape-survivors-actually-get-justice/
28. Pandey, M.C., 2019. Forensic officials booked for tampering evidence in sexual assault cases. India Today; https://www.indiatoday.in/india/story/forensic-officials-booked-for-tampering-evidence-in-sexual-assault-cases-1604042-2019-09-27
29. Tandon, A., Just 5% hospitals can handle forensics in rape cases. The Tribune, Chandigarh, India - nation. Available at: https://www.tribuneindia.com/2013/20130105/nation.htm#5
30. Roy, S.D.R.D. et al., 2013. Nithari murders: INEPT forensic labs delaying probes: India News - Times of India. The Times of India. Available at: https://timesofindia.indiatimes.com/india/Inept-forensic-labs-delaying-probes/articleshow/17934938.cms?referral=PM
Anon, 2020. NHRC issues SOP on collection & processing of scientific/forensic evidences in case of sexual assault on women to ensure effective prosecution leading to conviction; https://nhrc.nic.in/media/press-release/nhrc-issues-sop-collection-processing-scientificforensic-evidences-case-sexual