Ban Two-Finger Test On Rape Victims Forthwith : Madras High Court Directs State

The Madras High Court has directed the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith.

The bench of Justices R. Subramanian and N. Sathish Kumar issued this direction as it noted that the two finger test is being used in cases involving sexual offences, particularly, on minor victims even after the Supreme Court judgment which held that it violates the right of rape survivors to privacy, physical and mental integrity and dignity.

The court was disposing an appeal filed by an accused who was convicted under Section 5(l) read with Section 6(1) of the Protection of Children from Sexual Offences Act, 2012 and Section 363 of the Indian Penal Code. During the course of hearing, the counsel for the appellant and the Additional Public Prosecutor submitted that the two finger test has been held to be unconstitutional and several State Governments have banned it. 

The bench noted that in Lillu @ Rajesh and another vs. State of Haryana AIR 2013 SC 1784 :: (2013) 14 SCC 643, the Supreme Court had held that the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity and therefore even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. The bench also noted that the Gujarat High Court in State of Gujarat vs. Rameshchandra Ramabhai Panchal reported in 2020 SCC Online Gujarat 114, had held that the two finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value.

"In view of the above judicial pronouncements, we have no doubt that the two finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith.", the court observed.

Background

The court was dealing with an appeal filed under Section 374(2) CrPC against an order of conviction and sentence under the POCSO Act. The accused, Rajivgandhi had been convicted for life sentence which would be till the end of the life time for the offences under Section 5(l) read with Section 6(1) of the POCSO Act with a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for 3 months and 7 years rigorous imprisonment for an offence under Section 363 of IPC along with a fine of Rs.20,000/- in default to undergo simple imprisonment for 3 months.

The case of the prosecution was that the accused, who was running a tailoring shop in Perambur had befriended the victim, a minor girl aged about 16 years when she went for tailoring training. On 5.12.2020 the accused came near the house of the victim and enticed her to meet him. The victim girl left the house under r the pretext of getting some old clothes stitched. When she did not return, her father lodged a complaint with the Police who later found the girl.

The victim was taken to the hospital where it was found that the accused had penetrative sexual intercourse with the victim girl. The police recorded statement of the witnesses and arrested the accused. Confession of the accused was also recorded. Statement of the Doctor and constable who took the girl for medical examination was also recorded. Upon request Section 164 statement of the victim girl was also recorded. On completion of investigation, charge sheet was laid.

The trial court had concluded the guilt of the accused and found that the accused is guilty e under Section 5(l) of the POCSO Act for repeatedly having intercourse with the minor girl. The court also found the accused guilty of kidnapping the minor girl and punished him under Section 363 of the IPC.

The accused contended that the very narration of the incident by the witnesses was filled with inconsistencies. Moreover, the Section 164 statement of the victim does not have any mention of penetrative sexual assault. Therefore, the vocular evidence of the victim which runs counter to the statement need not be given consideration. He also argued that the accident register records that the hymen was not intact while the doctor deposed that the hymen was torn. Such inconsistencies would have a bearing on the credibility of the case of prosecution

He further contended that the victim girl had gone with the accused on her own and therefore, the theory of kidnapping could not be countenanced. He also pleaded that the quantum of sentence is excessive and improportionate to the proved offence. He also laid emphasis on the fact that the victim was a 16-year-old girl and therefore the relationship being consensual and on a promise of marriage, cannot be treated as forced sexual relationship.

On the other hand, the state submitted that the vocular evidence of the victim girl is clear and categoric. Further, there was no cross examination of the victim girl. In the absence of such cross examination pointing out the inconsistencies in the statement made under Section 164 Cr.P.C., the 164 statement cannot be relied upon by the accused to whittle down the effect of the vocular evidence of the victim girl. With respect to inconsistencies in medical evidence, it was stated that the same was only due to an imperfect language and should not be a ground to discredit the testimony of the medical expert or disbelieve the prosecution theory. He further contended that even if there was consent, the same could not be of any use to the accused, as any consent by a minor is invalid.

Court's Observation

With respect to the offence of kidnapping, the court held that the same cannot be justified as the conduct of the minor girl made it clear that she had gone with the accused on her own volition. The court relied upon decisions of the Supreme Court where under similar circumstances, it was held that to prove an offence of kidnapping, it must be established that the accused had a role in her walking out and taking her away from the home.

With respect to the offences made out under the POCSO Act, the court opined that even though there was consent, the order of the trial court was proper. Since the victim was never cross examines, the contradictions in the Section 164 statement and oral evidence could not be elucidated. "In the absence of such exercise, the contradiction between Section 164 statement and the oral evidence cannot be taken advantage of by the accused in order to dislodge the presumption that is created under Section 29 of the POCSO Act", the court said

On the aspect of quantum of sentence, the court was satisfied that there was some kind of relationship between the accused and the victim. Observing that reformation is the object of sentencing, and the particular facts of the case, the court modified the sentence for life imprisonment and reduced it to 20 years of rigorous imprisonment. The fine and the default period of sentence was sustained and the period of incarceration already undergone was directed to be set off under Section 428 Cr.P.C.

Case Title: Rajivgandhi v. The State represented by Inspector of Police

Case No: Crl Appeal (MD) No 354 of 2021

Citation: 2022 LiveLaw (Mad) 174

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