OFFENCE UNDER SECTION 375 OF IPC, 1860 FOCUSES ON ABSENCE OF CONSENT, NOT ON POTENCY.
SECTION 53A OF THE CrPC / SECTION 52 Of BNSS PERMITS MEDICAL EXAMINATION, BUT DOES NOT MANDATE POTENCY TESTING.
A. The offence of rape under Section 375 IPC is founded primarily on absence of consent and not on the potency of the accused. While section 53A CrPC / Section 52 of BNSS merely permits medical examination of an accused where such examination may afford evidence regarding commission of the offence; however, it nowhere mandates a potency test in every rape case.
B. The statutory framework itself demonstrates that potency testing is not a sine qua non for prosecution or proof of rape. Rather, Section 53A CrPC contemplates collection of material particulars such as injuries, DNA samples and other relevant evidence without any delay.
C. The settled judicial position is that potency tests are not required routinely and may be directed only in exceptional circumstances where impotency is specifically raised as a defence by the accused.
D. In Lillu v. State of Haryana, (2013) 14 SCC 643, the Hon’ble Supreme Court emphasized protection of dignity and bodily integrity in sexual offence investigations and deprecated invasive and unnecessary medical practices & observed as under:
“14. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to a presumption of consent.”
E. In Om Prakash v. State of U.P., (2006) 9 SCC 787, it was held that conviction can be based solely on the testimony of the prosecutrix and absence of medical examination or scientific tests is not fatal to the prosecution case.
F. In Kajendran, J.Vs Superintendent of Police, Cuddalore, (2023) SCC OnLine Mad 9266, it has been held that Potency Test need not be undertaken in a routine manner in all cases involving Sexual offence. The relevant paragraph is reproduced hereunder:
“21. It is quite evident from the statement made by the Doctor and also the Written Note submitted by the Doctor that Potency Test need not be undertaken in a routine manner in all cases involving Sexual offence. The Court has to proceed with the
presumption that the man is potent. If the Accused person raises impotency as a defense, the burden of proof will be upon the Accused person to prove that he is impotent. Only in such instances, there is a requirement for conducting the Potency Test. We make it abundantly clear that Potency Test must not be confused with the general examination of the Accused person that is carried out as a part of the normal procedure.”
G. In Kajendran, J.Vs Superintendent of Police, Cuddalore, (2024) SCC OnLine Mad 3319, it was held that the potency test that has been practiced for a long time without any valid reasons, must be stopped forthwith and the standard operating procedure that has been issued pursuant to our orders, must be strictly complied with. The relevant extracts are reproduced hereunder:
“21. The above guidelines that have now been issued sufficiently satisfies the directions issued by us on 07.07.2023 and 14.08.2023. We expect the above guidelines to be strictly followed and any violation of the same must entile consequences of initiating appropriate proceedings as directed by the Hon'ble Supreme Court.
22. In so far as the male potency test is concerned, the following standard operating procedure has been issued:
*Male Potency test need not be undertaken in a routine manner in all cases involving sexual offences.
1. If the accused person raises impotency as a defence, the burden of proof will be upon the accused person to prove that he is impotent. Only in such instances there is requirement for conducting the potency test.
2. The doctor must in rare cases adopt invasive methods to find if the man had consumed any pill or other medication and committed penetrative sexual violence where otherwise he is impotent.
3. Even in cases, as the semen may be traced in the victim or in her undergarments etc, it is enough if the blood sample of the offender is taken and the DNA is matched. It is not necessary to draw the semen from the accused person.”
23. We expect the above procedure to be followed without any default. The potency test that has been practiced for a long time without any valid reasons, must be stopped forthwith and the standard operating procedure that has been issued pursuant to our orders, must be strictly complied with.”
H. Similarly, in Archana Patil Vs. State of Karnataka Hal Police Station, (Represented By Learned State Public Prosecutor, High Court of Karnataka and Another (2025) SCC OnLine Kar 17687, the Hon’ble Karnataka High
Court held that non-conduct of a potency test does not vitiate criminal proceedings and reaffirmed that such tests are unnecessary unless impotency is specifically pleaded. The relevant extracts of the judgment are reproduced hereunder:
Issue No. 5:
(v) Whether non-conduct of a potency test of the victim has vitiated the entire proceedings?
19. The contention with regard to non-conduct of potency test of the victim is projected in buttressal of quashment of the proceedings. Heavy reliance is placed on the concept of potency test. It is the submission of the learned senior counsel that potency test is not conducted in the case at hand. Therefore, it is not known as to whether he had attained puberty or not, or got erection or not or was capable of penetration or not. This submission is also noted only to be rejected. The Division Bench of the High Court of Madras in the case of KAJENDRAN
J. v. SUPERINTENDENT OF POLICE3 has held as follows: “…. …. ….
21. The above guidelines that have now been issued sufficiently satisfies the directions issued by us on 07.07.2023 and 14.08.2023. We expect the above guidelines to be strictly followed and any violation of the same must entile consequences of initiating appropriate proceedings as directed by the Hon'ble Supreme Court.
22. In so far as the male potency test is concerned, the following standard operating procedure has been issued:
“*Male Potency test need not be undertaken in a routine manner in all cases involving sexual offences.
1. If the accused person raises impotency as a defence, the burden of proof will be upon the accused person to prove that he is impotent. Only in such instances there is requirement for conducting the potency test.
2. The doctor must in rare cases adopt invasive methods to find if the man had consumed any pill or other medication and committed penetrative sexual violence where otherwise he is impotent.
3. Even in cases, as the semen may be traced in the victim or in her undergarments etc, it is enough if the blood sample of the offender is taken and the DNA is matched. It is not necessary to draw the semen from the accused person.”
23. We expect the above procedure to be followed without any default. The potency test that has been practiced for a long time without any valid reasons, must be stopped forthwith and the standard operating procedure that has been issued pursuant to our orders, must be strictly complied with.
24. The learned Additional Public Prosecutor submitted that the details of the 111 cases that have been identified, is in the process of being collated and the police officers are in the process of getting in touch with the complainant/parent of the victim girl to see if they are consenting for bringing to an end the concerned criminal proceedings. We are inclined to grant some more time in this regard.”
The Division Bench holds that male potency test need not be undertaken in a routine manner in cases involving sexual offence. It is trite law that such submissions should undoubtedly be tried and tested in evidence. The issue is accordingly answered.”
I. In the present case, no defense of impotency has been raised. The alleged incident pertains to September 2024, whereas the complaint came to be filed only in February 2025 after receipt of divorce proceedings only as an afterthought. The parties were admittedly engaged in settlement discussions even after the alleged incident. The allegations have already been observed to be unbelievable in the bail order dated 09.12.2025, which has attained finality.
J. Thus, at this belated stage, nearly two years after the alleged incident, directing a potency test would serve no evidentiary purpose whatsoever. Moreover, such an invasive exercise would amount to an unnecessary infringement upon both the accused’s and victims dignity and right to life under Article 21 of the Constitution of India.
Thus, a potency test is not required under Section 53A Cr.PC or by the facts of this case.