Date of Order:
14th August 2023
Bench:
N. ANAND VENKATESH, J.
And
SUNDER MOHAN, J.
SUBJECT
- The matter was scheduled for hearing today in accordance with the earlier order issued by this Court on 07/07/2023. In their previous order, at Paragraph No. 19 of the order, the court had given specific instructions.
- The Additional Director General of Police, Crime against Women and Children, has filed a status report stating data from 36 units is yet to be collected from ten more. Dr. A. Nagendra Kumar, Associate Professor at the Institute of Forensic Medicine, explained that the two finger test is obsolete and there is confusion between them. Per-vaginal examination examines the vagina to determine if the victim has sustained an injury, while a colposcopy is used to examine the hymen and determine if treatment is needed.
SUBMISSIONS MADE
- The learned Additional Advocate General pleaded with the Court to give the 6th and 7th respondents some time so they could submit a report detailing how they followed the instructions contained in Paragraphs 19(a) and 19(e) of the earlier judgement given on July 7, 2023.
JUDGEMENT ANALYSIS
- The Director General of Police was directed to identify 1274 pending cases involving consensual relationships and prepare a separate list for the Court. 111 cases were identified from four zones, nine cities, and two Railway Police registered cases. The materials included FIR, gist, statement, medical reports, and age proof. The Additional Public Prosecutor is collecting details for cases pending trial in Tamil Nadu courts.
- Dr.A. Nagendra Kumar emphasized that impotency is a legal term, similar to erectile dysfunction, and a man is considered potent from intrauterine to death. He clarified that erection involves nerve signals from the penis, spinal cord, and brain, as well as psychological factors. He stated that potency tests are not required in cases of sexual violence, as blood samples and DNA matched, making it unnecessary to draw semen from the accused person.
- The doctor clarified that potency tests are not necessary for sexual violence cases, as blood samples and DNA matches can suffice. He also highlighted the possibility of an impotent individual using aphrodisiac pills or medication to commit penetrative sexual assault. In rare cases, invasive methods may be used to determine if the individual had consumed any medication and committed sexual violence. This clarification is supported by a note submitted to the Additional Public Prosecutor.
- The doctor’s statement and note indicate that potency tests should not be routinely conducted in sexual offense cases. The court must assume the accused is potent, and if the accused raises impotency as a defense, the burden of proof lies with the accused. Potency tests should not be confused with general examinations. The court’s observations should be considered in preparing the Standard Operating Procedure.
- The X vs. Principal Secretary case demonstrates that minors can terminate pregnancy without disclosing their name in a registered medical practitioner’s report under Section 19(1) of the POCSO Act. However, this procedure must be followed in cases where the minor and their guardian are not interested in proceeding further.
- The 6th respondent must address this issue and evolve a procedure to comply with the Apex Court’s judgment. The Chief Secretary and Director General of Police are added as respondents, and the Registry is directed to make necessary amendments in the cause title.
