‘Violates Privacy, Mental Integrity’: Orissa HC Urges Medical Professionals To Desist From Conducting ‘Two Finger Test’ On Sexual Assault Victims

The Orissa High Court has directed all the medical professionals to desist from conducting ‘two-finger test’ on the victims of sexual assaults to ascertain their virginity.

The Single Bench of Justice Sangam Kumar Sahoo reiterated that the said test is unconstitutional being averse to the invaluable dignity of the victims of sexual assault and thus observed,

“The medical professionals while conducting medical examination on the victims of rape and sexual assault cases should desist from two-finger test in the private part of the victim which is also known as virginity test as the test violates the right of such victims to privacy, physical and mental integrity and dignity and hence, not at all permissible under the law. It is no less than adding an unforgettable insult to an unhealed injury.”

An FIR was filed against the appellant for allegedly kidnapping the victim on a bicycle and establishing sexual intercourse with her repeatedly. Upon completion of investigation, the charge-sheet was filed.

After assessing the evidence of the victim the trial Court came to the conclusion that she was forced to move with the appellant and she was also forced to sexual intercourse. Therefore, it convicted the appellant under Sections 366 and 376 of the IPC. Being aggrieved by the said order, the appellant approached the High Court by filing this appeal.

Court’s Findings On Rape & Kidnapping

At the outset, the Court examined the documentary as well as medical evidence on record about the date of birth/age of the victim. After a thorough examination of the aforesaid evidence, the Court was of the considered opinion that the prosecution could not establish the minority of the victim with certainty.

Further, the Court assessed the deposition made by the victim wherein she had stated that the appellant dragged her near his cycle and then made her to sit on the rear carrier of the cycle and took her away from her village. However, she had stated in her cross-examination that she did not shout for help during the entire incident.

“In view of the conduct of the victim in sitting on the rear-carrier of bicycle of the appellant and not trying to escape from his cycle and not trying to shout to draw the attention of anyone either when she was dragged or when she was taken on the bicycle while passing through village houses clearly indicate that she was a consenting party,” the Court observed.

The Court again noted that after being rescued by the police, the victim was sent for medical examination. There she was asked about her marital status, to which she said to have been married to the appellant. Having regard for the aforesaid fact, the Court held,

“…the victim seems to have accepted the appellant as her husband and allowed the appellant to have sexual intercourse with her. This aspect finds corroboration from the medical report of P.W.11 who examined the victim. On genital examination of the victim, she found wide gapping of the labia majora, her labia minora was exposed and there were old tears over the hymen. All these are suggestive of the fact that the victim had frequent sexual intercourse with the appellant.”

Therefore, against the backdrop of the above assessment of evidence, the Court deemed it apposite to acquit the appellant of the charges under Sections 366 and 376 of the IPC.

Two-Finger Test: An ‘Unforgettable Insult’

Before parting with the order, the Court took into consideration the medical opinion rendered by the doctor who examined the victim. She had stated in her report that the vagina of the victim admitted ‘two fingers’ easily, which suggests frequent sexual intercourse.

The Court took exception to such test and said that it is an admitted position of law that a sexually active woman can also be raped. Thus, there is no legal justification in conducting such a test just to ascertain ‘virginity’ of a woman, which is not only unscientific but also traumatising.

The Court made reference to the judgment of the Supreme Court in Lillu @ Rajesh & Anr. v. State of Haryana, wherein the top Court had declared the ‘two-finger test’ as unconstitutional and held,

“…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.”

The Court also placed reliance upon the decision of the Apex Court in the recent case of State of Jharkhand v. Shailendra Kumar Rai where the Court while reiterating the dictum laid down in Lillu (supra), ruled that any person who conducts ‘two-finger test’ or ‘per vaginum examination’ in contravention of the directions of the Court shall be guilty of ‘misconduct’.

“No doubt the medical examination in the present case was conducted by P.W.11 in the year 2011 which is two years prior to the decision of the Hon’ble Supreme Court in the case of Lillu (supra), however, this Court is constrained to observe the above as it is not very infrequent to see such test being conducted by medical professionals in a routine manner while medically examining victims of rape and sexual assaults in most of the cases which is derogatory to the invaluable dignity of the victims,” the Court added.

Case Title: Satrughna Samal v. State of Odisha

Case No.: JCRLA No. 24 of 2015

Date of Judgment: August 23, 2023

Counsel for the Appellant: Mr. Sobhan Panigrahi, Amicus Curiae

Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 96

Click Here To Read/Download Judgment