“Two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity

Harshit Sharma | Amity Law School, Madhya Pradesh | 5th February 2020

State of Gujarat V/s. Rameshchandra Ramabhai Panchal R/Crl. Appl. No. 122/1996 & R/Crl. Appl. No. 25/1996

FACTS OF THE CASE

1. The present appeals arise from a common judgment and order passed by the Additional Sessions Judge, Ahmedabad Rural, Ahmedabad dated 24th November, 1995 in the Sessions Case No.229 of 1994, those were heard analogously and are being disposed of by this common judgment and order, which convicted the accused u/s. 363 and 366 of the Indian Penal Code, 1860 and with effect of it same has acquitted the accused from the charge of Section 376 of Indian Penal Code, 1860. 
2. It is the case of the prosecution that the victim viz.Hansaben Shankarbhai, a resident of Village­Gyaspur Bhatha, Taluka Daskroi, District­Ahmedabad while was on her way to answer nature’s call early in the morning of 26th March 1994 was hit by the accused with a weapon called ‘Dato’ and forcefully took her away. The victim was forcefully taken away by the accused to his village by name ‘Godha’. According to the case of the prosecution, the accused kept the victim at his house for few days and thereafter at the house of his brother situated at Kadi. While the victim was in custody and confinement of the accused, she was ravished forcefully.
3. The court was deciding a very unique acquittal appeal. “We are saying so because the entire appreciation of the oral evidence on record by the trial Court, more particularly, the evidence of the victim is on the basis as if the victim was major at the time of the commission of the offence and was a consenting party. It is only at the time when the trial Court heard the prosecution and the defence on the point of sentence that the trial Court realized that it had committed a mistake in calculating the age of the victim. At one stage, the trial Court has recorded in its judgment that the victim, at the time of commission of offence, was aged 16 years 06 months and 25 days old. Later, the trial Court realized that she was less than 16 years of age. In fact, the trial Court has also acknowledged its mistake, but declined to do anything in the matter, as the order of acquittal was already pronounced.”

ISSUES RAISED

1. Whether the prosecutrix was minor at the time of the commission of the alleged offence of rape?
2. Whether the ‘Per Vaginal’ Test popularly known as ‘Two-Finger Test’ is unconstitutional? 

RULING OF THE COURT/THE COURT HELD THAT

While holding the accused guilty of offence u/s. 376 of Indian Penal Code and allowing the acquittal appeal of State, the court made the following observations: 

• In the light of Lilu @ Rajesh and Anr. Vs. State of Haryana; (2013) 14 SCC 643 and Re: Assessment of The Criminal Justice System in Response to Sexual Offences in SMW (Cri.) No(s). 04 of 2019, the court observed that-

“13. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize 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 his 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. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

• “Unfortunately, the trial Court realized its mistake in calculating the age of the victim at a very late stage. The trial Court had already pronounced the judgment of acquittal so far as the offence of rape is concerned. While the trial Court was hearing the accused and the prosecution at the point of sentence it realized that the victim was a minor. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.”