Chennai: Medical examination of minor victims in sexual assault cases should be done only in case of penetrative sexual assault, ruled Madras high court, denouncing the “mechanical medical examination” by doctors even in cases of kissing and groping.
“Though Section 27 of Pocso Act provided for the medical examination of a child against whom any offence was committed, when the Section is read with Section 164A of the CrPC, it must be understood that the medical examination was with respect to cases in which there was a penetrative sexual assault,” said a special bench of Justices N Anand Venkatesh and Sunder Mohan.
The order was passed after HC was informed that in several cases even when for offences such as kissing or groping, the children concerned are often subjected to medical examination, including vaginal tests.
The judges said that for offences under Sections 3 and 5 of the POCSO Act, which deal with penetrative sexual assault and aggravated sexual assault, respectively, a medical examination is necessary to substantiate the offence.
However, for offences of sexual assault, aggravated sexual assault, and sexual harassment, there might not be an element of penetration. In such cases, subjecting the child to a medical exam, including collection of vaginal swabs, could put the child under more stress, especially when no use was served by performing such a medical examination, they added.
Direction subject to caveat: HC
The order, however, had a caveat. Noting that medical examination could not be dispensed with in a blanket manner for all cases falling under sections 7,9, and 11 of the Act, the HC said: “The above direction is subject to one caveat. There are cases where the child may get injured, but the offence may be one falling under Section 7, 9 or 11 of the Act. In such cases, a medical examination of the child may be necessary to explain the nature of the injury. We make it clear that the doctors examining the victim child shall decide upon the tests to be conducted based on the complaint of the child.”
