Supreme Court declares two-finger test unlawful and that it is based on Patriarchal Mindset that Sexually Active Women Cannot Be Raped

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The Supreme Court declared that the two-finger test is unlawful and that it is based on the Patriarchal Mindset that Sexually Active Women Cannot Be Raped.

Background 

Prosecution case was that the respondent entered the house of the victim and deceased in Narangi village, on the afternoon of 7 November 2004. 

It is alleged that he pushed her to the ground and committed rape upon her, while threatening to kill her if she sounded an alarm. She called out for help, at which point the respondent allegedly poured kerosene on her and set her on fire with a matchstick. 

Her cries for help led her grandfather, mother, and a resident of the village to come to her room. The respondent is alleged to have fled the scene upon seeing them.

The victim’s family (along with the villager) extinguished the fire and took her to Sadar Hospital, Deoghar, where she was admitted and underwent treatment for the injuries sustained by her. 

The appeal arises from the judgment of the High Court of Jharkhand. The High Court allowed the appeal by the respondent and set aside the order of conviction and, consequently, of sentence passed by the Additional Sessions Judge. 

The Sessions Judge had convicted the respondent for offences punishable under Sections 302, 376, 341 and 448 of the Indian Penal Code 18601 and sentenced him to suffer imprisonment for life.

Issue raised

The issues raised before the court are whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872; Whether the prosecution has proved the charges against the respondent beyond reasonable doubt.  

Arguments 

Advocate Vishnu Sharma, appearing for the appellant, submitted that the High Court has not appreciated the evidence correctly; Dr. RK Pandey was attending to a patient on the table adjacent to the deceased, and not to a patient in a room adjacent to the one in which the deceased was present.

He contended that the post-mortem examination of the deceased was conducted within 12 hours of the time of death. The post-mortem report concluded that the cause of death was septicemia due to the burn injuries sustained by her.

Advocate Braj Kishore Mishra, appearing for the respondent, submitted that although the dying declaration indicates that the respondent raped the deceased, the Medical Board’s report stated that no definite opinion could be given in this regard. There is no evidence other than the dying declaration to show that the respondent raped the deceased.

He contended that the victim died around a month after the occurrence of the incident. The statement made by the deceased to the IO is therefore not a dying declaration. 

Decision

The division bench of Justice Dhananjaya Y Chandrachud and Justice Hima Kohli observed that the statement of the victim in the present case is indeed a statement relevant as to the cause of her death and in regard to the circumstances which eventually resulted in her death, as elaborated upon in the subsequent segment.

The court said that the statement satisfies the conditions laid down in subclause (1) of Section 32 as it relates to both, the cause of death as well as to the circumstances of the transaction which resulted in death. 

It was further observed by the bench that there is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone.  

“The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case” the court said.

The court found that the prosecution proved its case beyond reasonable doubt before the Sessions Court. 

It said that the High Court ought not to have overturned the Sessions Court’s judgment.

The court set aside the High Court’s decision and restored the Sessions Court’s judgment convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order sentencing the respondent to rigorous imprisonment for life for the offence punishable under Section 302 of the IPC and rigorous imprisonment for 10 years for the offence punishable under Section 376 of the IPC.

It was noted by the court that while examining the victim, the Medical Board conducted what is known as the “two-finger test” to determine whether she was habituated to sexual intercourse. 

“This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The “two-finger test” or pre vaginum test must not be conducted” the bench stated.   

The court directed the Union Government as well as the State Governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals. 

It further directed the governments to Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape. 

The court also directed the governments to review the curriculum in medical schools with a view to ensuring that the “two-finger test” or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape. 

The bench ordered that any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of the Court shall be guilty of misconduct.

Case title: The State of Jharkhand v/s Shailendra Kumar Rai @ Pandav Rai

Citation: Criminal Appeal No 1441 of 2022

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