T. Kalaiselvan, Advocate (Advocate) 15 May 2023
The victim (minor or adult), the parent/guardian/person in whom the victim reposes trust, has the right to refuse either medico-legal examination or collection of evidence or both, but that refusal will not be taken as denial for medical treatment of survivor after s*xual violence. same.
However the absence of any report of medical examination of the victim would go in favour of the accused and he is entitled to get benefit of doubt.
However this was overruled by the higher court subsequently, but details are not available
Dr J C Vashista (Advocate) 16 May 2023
Of course refusal for medical examination shall weaken prosecution and favour accused.
Niharika Lohan 18 May 2023
Hi Salil, I’m Adv. Niharika and here is my take on your query.
Medical examination of both the victim and accused always plays a very important role in case of s*xual offences. As there is usually no eye-witness of the act.
However with the changing times and changing laws, a victim has a right to refuse medical examination, which shall not by the mere refusal render the victim’s case groundless. It definitely weakens the case, but that cannot be made a sole basis for an adverse inference.
In the case of State of Karnataka v. S.Raju (2007)11SCC 490, the Karnataka High court upheld that even in the case of absence of medical evidence, rape accused can be convicted. Therefore the corroboration with medical reports is not necessary in every case.
In State of MP v. Dayal Sahu (2005)8 SCC 122 the Supreme Court ruled that an appellate court shall not reserved the findings of guilt on the basis of irrelevant circumstances. Where the evidence of the victim and other witness was found reliable, accused shall not get the benefit of doubt for non examination of doctor of prosecution.
I hope this answers your query and if you have further questions, you can reach me at email@example.comI