Any person who conducts the “two-finger test” will be held guilty of misconduct: Supreme Court

It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active, the Supreme Court emphasised while urging a stop to the practice of “the two-finger test” in rape or sexual assault cases.

THE Supreme Court, on Monday, in the case of The State of Jharkhand versus Shailendra Kumar Rai @ Pandav Rai, held that while examining a victim of an alleged sexual assault, any person who conducts the “two-finger test” or per vaginum examination will be held guilty of misconduct. The bench, comprising Justices  D.Y. Chandrachud and Hima Kohli, in this case, reversed the order of the High Court of Jharkhand and convicted the respondent for the offences of ‘rape’ and ‘murder’ under the Indian Penal Code (‘IPC’).

The appeal, in this case, was filed challenging the order of the Jharkhand High Court that set aside the order of conviction and sentencing of the respondent to life imprisonment under Sections 302376341, and 448 of the IPC, passed by Additional Sessions Judge, FTC-II Deoghar.

According to the prosecution, the respondent raped the victim by entering her house on November 7, 2004, and threatened to kill her. When the victim called out for help, the respondent poured kerosene on her and set her on fire. The victim’s fard beyan (dying declaration) was recorded on the same by the station-in-charge at Sarwna Police Station, where she narrated the incident. She died on December 14, 2004.

The Supreme court held that the oral evidence of Dr. R Mahto, the prosecution witness who prepared the post-mortem report, testifying that an unnamed doctor had advised transferring the victim to another hospital, was inadmissible and amounted to hearsay under Section 60 of the Indian Evidence Act. The Court rejected the argument that the victim’s statement could not be treated as a dying declaration since she was not transferred to the recommended hospital and that her death was preventable. However, Dr. R. Mahto’s testimony on the victim’s death due to septicemia, caused by the burn injuries, was accepted.

The Court further held that the statement of the victim satisfies the conditions provided under Section 32(1) of the Indian Evidence Act in respect of the circumstances which resulted in her death. The court found that the post-mortem report established that the victim died due to septicemia on account of her burn injuries, and her dying declaration confirmed the allegations against the respondent.

On the admissibility of the victim’s dying declaration, the court referred to a catena of judgments and held that dying declarations cannot be held inadmissible if they are recorded by police personnel, as in the present case. The court clarified that if possible, such declarations ought to be recorded by a Magistrate.  It was pointed out by the division bench that Dr. R K Pandey certified that the victim was physically and mentally fit, and was present at the time her statement was recorded by one Lallan Prasad. The court, thus, ruled out the possibility that the victim’s statement was a result of tutoring or that she was incapable of making a statement.

Secondly, the bench analysed the issue of whether the prosecution proved its case beyond a reasonable doubt. It referred to the respondent’s contention that since the Medical Board did not find any evidence of rape, the respondent is not guilty of raping the deceased victim. The court observed that when the dying declaration is not suspicious, which in the present case clearly stated that the respondent raped her and set her on fire, there is no rule mandating its corroboration. Referring to other judgments of the Supreme Court, it held, “A lack of medical evidence as to commission of rape cannot be taken to mean that no rape was committed upon the deceased.”

On the issue of prosecution witnesses, including family members of the victim turning hostile in their testimonies, the judgment authored by Justice Chandrachud noted, “The absence of evidence which establishes the consistency of the dying declaration over a period of time is not fatal to the prosecutions’s case”. The trauma caused by testifying on the rape and death of a loved one and the ‘compounding’ effect of the ‘slow pace of the criminal justice system’ was noted by the judgment.

Setting aside the High Court’s decision and restoring the Session court’s judgment, the Supreme Court sentenced the respondent to rigorous imprisonment for life under Section 302 of the IPC, and for 10 years imprisonment under Section 376 of the IPC. It issued the direction to take the respondent into custody immediately.

Two-finger test or per vaginum examination

In its parting remarks, the Court noted that while examining the victim, the Medical Board conducted the “two-finger test” that determines whether the victim was habituated to sexual intercourse. The court termed it as a ‘regressive’ and ‘invasive’ test with no scientific basis on the allegations of rape and sexual assault and strongly urged that such an examination must not be conducted.

Whether or not a woman is ‘habituated to sexual intercourse’ is irrelevant for the purposes of Section 375 of the IPC, and a woman’s sexual history is “wholly immaterial” in determining whether she was raped, the court observed. It remarked, “It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.”

The Court quoted the case of Lilly versus State of Haryana (2013), wherein the Supreme Court held that the “two-finger test” was violative of the rights of the rape survivors to “privacy, physical and mental integrity and dignity”.

The court further referred to Section 53 A of the Indian Evidence Act, inserted by the Criminal Law (Amendment) Act, 2013, which provides that evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences. It further referred to guidelines issued by the Ministry of Health and Financial Affairs for health providers in cases of sexual violence stating that such per vaginum examination must not be conducted for establishing rape or sexual assault.

Expressing its regret on the continued conduct of the “two-finger test” even in current times, the Court issued necessary directions to the Union and the State Governments – firstly, to circulate the guidelines of the Ministry of Health and Family Welfare to all government and private hospitals; secondly, to conduct workshops for health providers to communicate the appropriate procedure; thirdly, to review the curriculum in medical schools to ensure that the “two-finger test” is not prescribed.

Holding any person who conducts the “two-finger test” guilty of misconduct, the court stated, “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 this Court shall be guilty of misconduct.”

The Leaflet