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There goes a well known adage that, "It is better to be late than never". It is really good to see that finally the Supreme Court has decided to go whole hog in cracking the whip on two finger test in rape cases. In a most recent judgment dated October 31, 2022, the Apex Court in a most laudable, landmark, learned and latest judgment titled The State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai in Criminal Appeal No. 1441 of 2022 and cited in 2022 LiveLaw (SC) 890 has prohibited "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. The Bench comprising of Hon'ble Mr Justice Dr Dhananjaya Yashwant Chandrachud and Hon'ble Ms Justice Hima Kohli while restoring the conviction in a rape case lamented that, "It is regrettable that "two-finger test" continues to be conducted even today."

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon'ble Mr Justice Dr Dhananjaya Yashwant Chandrachud for a Bench of Apex Court comprising of himself and Hon'ble Ms Justice Hima Kohli sets the ball in motion by first and foremost putting forth in para 1 that, "This appeal arises from the judgment of the High Court of Jharkhand dated 27 January 2018. 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, FTC-II Deoghar, on 10 October 2006 and 11 October 2006 respectively. 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."

To put things in perspective, the Bench then envisages in para 2 that, "The case of the prosecution is 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 to 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."

As it turned out, the Bench then points out in para 3 that, "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 station in-charge at PS Sarwna, received information regarding the incident and travelled to Deoghar, where he recorded the victim's ‘fard beyan' on the same day (i.e., 7 November 2004). In her statement, she narrated the incident as described in paragraph 2 above."

As we see, the Bench then mentions in para 4 that, "FIR No. 163 of 2004 was registered at PS Sarwna on the basis of the statement of the victim and the investigation commenced. Lallan Prasad was the IO and later, Suresh Yadav took over the investigation from him. Upon the completion of the investigation, the IO submitted a charge-sheet under Section 173 of the Code of Criminal Procedure 1973 for offences under Sections 307, 341, 376 and 448 of the IPC. The victim died on 14 December 2004, leading to the submission of a supplementary charge-sheet against the respondent, with reference to Section 302 of the IPC."

Do note, the Bench points out in para 21 that, "The following witnesses initially supported the prosecution's case but were later declared hostile:

  • Parvati Devi, PW 1 (mother of the deceased);
  • Bibhuti Bushan Ray, PW 2 (grandfather of the deceased);
  • Mritunjay Ray, PW 3;
  • Sanjay Kumar, PW 4;
  • Sunil Kumar Roy, PW 5; and
  • Bal Krishna Ray, PW 10."

Do also note that the Bench then states in para 53 that, "PW 1 – 5 and PW 10 (being the family members of the deceased and other persons known to her) were declared hostile during the proceedings in the Sessions Court. It is common for witnesses to turn hostile after the death of the victim (or even prior to it) for a variety of reasons. In Ramesh v. State of Haryana, 10 this Court noted some of the factors responsible for witnesses turning hostile:

"44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as "culture of compromise". Commenting upon such culture in rape trials, Pratiksha Bakshi ["Justice is a Secret : Compromise in Rape Trials" (2010) 44, Issue 3, Contributions to Indian Sociology, pp. 207-233.] has highlighted this problem in the following manner:

"… The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live. …""

Adding more to it, the Bench then also notes in para 54 that, "In addition to these factors, witnesses who know the deceased victim may turn hostile because they wish to move on with their lives. Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system."

It has to be borne in mind that the Bench then notes in para 55 that, "That certain witnesses including the family members of the deceased were declared hostile is insufficient to cast doubt upon the prosecution's case. It was not the prosecution's case that the hostile witnesses were eye witnesses to the crime. Rather, these witnesses' testimonies were relevant mainly to show that the deceased consistently stated that the respondent raped and murdered her, to different persons. The absence of evidence which establishes the consistency of the dying declaration over a period of time is not fatal to the prosecution's case. As noted previously, the dying declaration was recorded in the victim's words and read out to her, after which she affixed her signature on it."

Simply put, the Bench then states in para 56 that, "Dhirendra Rai (DW 1) testified that a false case had been instituted against the respondent but failed to provide a convincing reason for his opinion. We are not persuaded that a small disagreement regarding the irrigation of land would prompt the deceased to falsify rape charges against the respondent or lie about his having set her on fire, especially when she was not party to the alleged disagreement about the irrigation of land."

To be sure, the Bench then discloses in para 57 that, "Dasrath Tiwary (DW 2) deposed that the deceased was unable to speak after she was burnt. This is patently false as established by the testimonies of both Lallan Prasad and Dr. RK Pandey. Dr. RK Pandey certified that the deceased was physically and mentally fit, and was present while her statement was recorded by Lallan Prasad. Dr. RK Pandey did not have any animus towards the respondent, nor has the defence suggested that he did. He had no reason to give false testimony regarding the victim's health, or to give a false certificate of fitness at the time her statement was recorded."

Frankly speaking, the Bench then observes in para 58 that, "Balmukund Rai (DW 3) testified that the deceased was injured while cooking. We find this to be wholly unconvincing. Nothing emerges from the record which suggests that the deceased had any reason to concoct a story implicating the respondent. Further, nothing suggests that Balmukund Rai was present in the victim's home when the supposed accident took place. If he did witness the accident, it begs the question of where he went when Dhirendra Rai supposedly entered the victim's house. The dying declaration has greater probative value than Balmukund Rai's testimony and we are inclined to accept the version of events narrated in the former."

As a corollary, the Bench then observes in para 59 that, "For these reasons, we find that the prosecution proved its case beyond reasonable doubt before the Sessions Court. The High Court ought not to have overturned the Sessions Court's judgment for the reasons discussed previously. While this Court does not ordinarily interfere with orders of acquittal passed by High Courts, it may exercise its power to do complete justice and reverse orders of acquittal to avert a miscarriage of justice. (Satbir v. Surat Singh (1997) 4 SCC 192; State of Punjab v. Ajaib Singh (2005) 9 SCC 94). We therefore set aside the High Court's decision dated 27 January 2018 and restore the Sessions Court's judgment dated 10 October 2006 convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order dated 11 October 2006 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. These sentences are to run concurrently. The respondent shall be taken into custody to serve the sentence immediately."

Most significantly, what forms the real nucleus of this judgment is then summed up in para 60 stating 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 Court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. 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."

While citing the most relevant case law, the Bench then points out in para 61 that, "In Lillu v. State of Haryana, 2 (2013) 14 SCC 643 this Court held that the "two-finger test" violates the right to privacy, integrity, and dignity:

"13. … rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.

14. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.""

Most commendably, the Bench then graciously concedes in para 62 that, "Whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case. The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history. 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."

Quite commendably, the Bench then points out in para 63 that, "The legislature explicitly recognized this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A. In terms of Section 53A of the Evidence Act, 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."

A key point to note here is that the Bench specifies in para 64 that, "The Ministry of Health and Family Welfare issued guidelines for health providers in cases of sexual violence.13 These guidelines proscribe the application of the "two-finger test":

"Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test', must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.

The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented.""

Quite candidly, the Bench then concedes in para 65 that, "Although the "two-finger test" in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today."

Most remarkably, the Bench then directs in para 66 holding that, "We direct the Union Government as well as the State Governments to:

a. Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals;

b. Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and

c. 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."

In addition, the Bench then further hastens to add in para 67 that, "A copy of this judgment shall be shared with the Secretary, Ministry of Health and Family Welfare, Government of India. The Secretary, Ministry of Health and Family Welfare, Government of India shall transmit copies of this judgment to the Principal Secretary (Department of Public Health) of each state. The Principal Secretaries in the Departments of Health of each state shall also be responsible for ensuring the implementation of the directions issued in Part E of this judgment. The Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. The Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police."

Most strictly, the Bench then states in para 68 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 this Court shall be guilty of misconduct."

All told, the Apex Court has finally ended the long wait and banned the two finger test in rape cases while allowing the appeal. The Court has clearly pointed out that it is based on patriarchal mindset that sexually active women can't be raped. So now anyone who conducts it shall be guilty of misconduct and shall face legal action as it has been banned completely by the Apex Court in this leading case!

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