- In Rajivgandhi vs The State rep. by The Inspector of Police the Madras HC has directed the State Government to ban the practice of two finger test on rape victims by medical practitioners immediately.
- This direction was issued after the Court noticed that the same was being conducted in cases of sexual offences involving minor victims even after the Apex Court had held that the test violates the right of rape survivors to privacy, physical and mental integrity and dignity.
- In the instant case, the Court was hearing an appeal which was filed by the accused who had been convicted under section 5/6 of POCSO and 363 of IPC. During the course of the hearing, the Counsel for the appellant had argued that the two finger test has been declared unconstitutional and several State governments have already banned it.
- The prosecution’s case was that the accused had befriended the 16 year old victim and on 5-12-2020 the accused enticed her to meet him. She left her home on the pretext of getting some clothes stitched and when she did not return for a while, 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 committed penetrative sexual assault on the victim and he was sentenced to imprisonment for life under section 6 of POCSO and 7 years imprisonment for the offence under section 363 IPC. Aggrieved by the same, the accused had preferred the present appeal.
- The learned Counsel for the appellant submitted that the medical examiner had deposed that the hymen was torn and the vagina admitted two fingers, while the accident register records that the hymen was not intact. Thus, the inconsistencies would have a bearing on the credibility of the prosecution case. He had also argued that the sentence awarded was excessive and is not proportionate to the proved offence. He also argued that no offence under section 363 IPC was made out since the victim had voluntarily gone with the applicant. The relationship was consensual and was on the pretext of marriage, and the same cannot be held to be a forced sexual relationship.
- The Counsel for the appellant also submitted that the two finger test had been declared unconstitutional by the Supreme Court. He relied upon various decisions in support of his argument.
- At the outset, the Court relied upon the decision of the Apex Court n S. Vardharajan vs State of Madras AIR 1965 SC and held that the evidence on record clearly shows that the victim had voluntarily gone with the accused and had left her home on the pretext of getting some clothes stitched. She was with him for 24 hours and did nothing to escape from his custody, thus an offence under section 363 IPC was not made out and the accused was acquitted of the same.
- The Court also observed that the prosecution had been able to prove the foundational facts of the case and the trial Court was correct in convicting the accused under the provisions of the POCSO Act.
- While referring to the practice of the two finger test, the Court referred to the decision of the Apex Court in Lillu @ Rajesh and anr. vs State of Haryana (2013) where it was held that the two finger test and its interpretation violates the right of rape survivors to privacy, dignity and physical and mental integrity. It was also observed that the victims are entitled to medical procedures conducted in such a manner that respects their right to consent. The test, even if it gives an affirmative report, cannot ipso facto give rise to the presumption of consent.
- The Gujarat HC had held in State of Gujarat vs Rameshchandra Ramabhai Panchal (2020) SCC that the two finger test used in the context of sexualt assault cases has no forensic value, and declared it as unconstitutional.
- In view of these judicial pronouncements, the Court held that the practice of the two finger test cannot be allowed to be continued. The State government was asked to ban the same.
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