NAME-Naman Mishra

COLLEGE-Himachal Pradesh National Law University

INTRODUCTION

In India, sexual savagery by and large and assault specifically, got broad media inclusion
following a deadly scandalous assault of a Physiotherapy understudy in Delhi on 16 December
2012; likewise well known as "Nirbhaya Case". The episode drove nationwide shock and pain
censuring this egregious wrongdoing, at long last convincing the Government of India to correct
the laws with respect to rapes, particularly assault, which prompted going of Criminal Law
(Amendment) Act, 2013 per year later. The Criminal Law (Amendment) Act, 2013 came into
power vide newspaper notice on second April 2013. After the new law came into power, the pace
of detailing of assault cases expanded all through the country. The conviction rate in these cases
is low because of numerous variables like absence of proof, bogus claims.

For a case of rape, the secured blamed is exposed to strength assessment other than broad medico
legitimate assessment and proof assortment. A most optimized plan of attack court in Delhi
while clearing an assault charged communicated genuine dismay about the way of directing
strength tests. In this paper, we have talked about the basis of intensity trial of rape considering
Criminal Law Amendment Act (2013), court judgment and other accessible writing. Further
recommendations are likewise given to adjust the current existing convention with respect to
clinical assessment of blamed for the better use for assets and accessible work power.

POTENCY

A male is supposed to be inept when there is powerlessness to create or keep up a penile erection
adequate to finish up the demonstration of intercourse to climax and discharge. In common
courts the topic of power emerges in cases like appropriation, questioned paternity, nullity of
marriage and separation. In criminal courts the intensity is inspected in instances of wrongdoing
against ladies and kids like assault, rape, attack, and homosexuality.

Intensity relies upon different anatomical, physiological, neurotic and mental variables. To
accurately analyze/preclude impotency or we can say 'Sexual Dysfunction', other than broad
physical assessment, following tests/examinations are should have been performed.
1. Blood test:

(a) Serum testosterone and sex hormone binding globulin- to exclude endocrine causes.

(b) Fasting glucose and glycated hemoglobin (HbA1c) - to exclude latent diabetes
mellitus.

(c) Lipid profile- for deranged lipid profile.

(d) Thyroid hormones- for hypogonadal patients.

(e) FSH- for patients with special clinical conditions.

2. Nocturnal penile tumescence.

3. Duplex ultrasonography.

4. Intracavernosal testing with vasoactive substance.

5. Cavernosometry – used to test for venous leaks.

6. Cavernosography – it is radiographic visualization of the cavernous penile tissues using

contrast material in order to exclude structural abnormalities within the cavernous tissues. It
helps in the differential diagnosis of organic impotence and is the only means of visualizing
structural abnormalities of the corpora cavernosa.

7. Penile arteriography

8. Spongiosography.

POTENCY TEST OF THE ACCUSED

Medical examination is a must for an accused of rape as well as other form of sexual assaults.
Accused is brought in the custody of police along with the request from Investigating Officer to
conduct medical examination including potency test. Section 53 of Cr.P.C lays down the
guidelines for Investigating Officer and the examining doctor in such cases. Upon receiving a
request from Investigating Officer, the Medical officer has to examine accused, preserve required
evidences and hand over the report to Investigating Officer. The examination includes general
physical examination, systemic examination, injury examination (if any) and local examination
of genitalia. If the incident is recent, the trace evidences like blood, clothes of the accused, pubic
hairs, nail clippings are preserved which may help in linking the accused to the crime.

The police in their application also request the Medical officer to conduct the “POTENCY
TEST” After examination the doctor has to opine whether the person examined is capable of
performing sexual intercourse or not. The opinion given is generally double negative and is
generally written as “There is nothing to suggest that the person examined is incapable of
performing sexual intercourse under normal circumstances”. The medical examination report of
the accused is labeled as the “POTENCY TEST REPORT”.

ISSUES RELATED TO CURRENT PRACTICES

In criminal cases, the potency of an accused in current practice is determined by the fact that
after general physical examination, systemic examination (CNS, CVS, Respiratory system, &
abdominal findings), absence of any major illness and anatomically normal external genitalia, no
condition could be found which can interfere in an individual’s capability of performing sexual
intercourse under normal circumstances. However, various other factors like pathological or
psychological conditions also play part in determination of potency. These factors are not
considered in most of the cases and hence, put the whole potency test report in doubt.

An honorable Fast track court (dealing specifically with cases of sexual assault) in Delhi has
raised objections to the manner in which potency examination of an accused is conducted on
above lines and the double negative opinion given after examination. The court also ordered the
Ministry of health and Family Welfare, Government of India, to frame the guidelines for potency
test of the accused, if necessary.
The real issue is the manner in which this opinion is reached at, and this is aggressively
questioned and contested in the courts by the defense counsels. In the cross examination the
defense counsels argue that when the tests like hormonal test, Doppler flow study have not been
done, how can one opine about the potency of a person? There is no doubt that the questions
raised by the defense counsels and the queries by the honorable court have merits and are
serious. The above mentioned comments by the courts of law have put a question mark on the
way potency test is generally conducted in India.

In this way, much in the wake of having a typical outcome for the broad rundown of
examinations referenced above under the heading 'power', which avoid the natural reasons for
sexual brokenness, a charged man can in any case be weak at a specific circumstance. Casper
expresses that the ownership of virility and force neither requires to be, nor can be, demonstrated
to exist by any doctor however should exist simply like some other typical function.12 If the
private parts are ordinary, an assessment of feebleness can't be given. The new SECTION 375
suggests that a man will be blamed for submitting assault regardless of whether he embeds any
item, his fingers, and casualty fingers inside the normal holes referenced. In the scenery of this
area it very well may be reasoned that peno-vaginal intercourse isn't important to call it as
assault. An individual, who can't get a penile erection can likewise perform and be blamed for
assault. One can explicitly ambush a female even without the inclusion of the penis.

The expense of examinations and labor included should be contemplated. A considerable lot of
the tests should be finished by radiologist or urologist who won't just do the assessment however
will likewise go to the court summons in future. In a creating nation like India where the
wellbeing area is as of now battling because of the absence of assets and labor, there is no
avocation of occupying such a significant number of assets to one such issue which eventually
doesn't have any generous effect over the destiny of the case in the courtroom. Clinical proof in
rape cases albeit significant, isn't the main proof, which the court takes a gander at in choosing
such cases. The court chooses the issue based on complainant articulation, incidental and
validating confirmations.

The Potency assessment of each charged can be contrasted with a disposed of clinical assessment
test called "THE TWO FINGER TEST" that was utilized to be done on the survivors of assault.
In this test it was viewed as that if two fingers are effectively going through the opening of the
hymen, it demonstrates past sexual intercourse. This test was seen as crazy towards the character
of the female and was eventually disposed of. In creator's perspectives, any individual who is
blamed for rape has all the major rights conceded by the constitution of India. He ought to
likewise reserve the privilege to nobility. In addition, taking a gander at the huge number of
quittances and furthermore documenting of assault cases because of ulterior motives the defense
of exposing a blamed to this unnecessary procedure for alleged potency testing gets flawed.

CONCLUSION

The law accept an individual to be blameless except if demonstrated something else.

Consequently, an individual blamed for assault ought to likewise be treated with pride. Much the
same as the "two finger test" done on assault casualty, power test additionally undresses the
blamed for his security and nobility. This pattern of exposing every single charged to strength
test with no justification should be halted. This likewise superfluously strains the labor and assets
of medical clinics, which can be used for other better purposes.