The Jammu and Kashmir High Court, on Thursday, directed the Health Professionals in the Union Territories Jammu and Kashmir and Ladakh, to desist from the two-finger test on rape survivors.
A division bench of Acting Chief Justice, Rajesh Bindal, and Justice Sanjay Dhar, was formulated for the hearing which was filed against the judgement passed by the Principal Sessions, Judge, Bhaderwah, whereby, the accused was acquitted of all the charges of Rape.
According to Aseem Sawhney, the court did not believe the statement of the Prosecutrix on technicalities and because the reasons were very flimsy. Also, keeping in view the contentions raised by the AAG, the court found out that prima facie, the case for grant of leave to file an appeal was made out. Therefore, the application was allowed and the appeal against the judgement was granted.
Facts of the Case:
On December 13, 2014, the prosecutrix went missing and in this regard, a complaint was lodged with the police by her maternal grandfather. During the investigation, it was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. Accordingly, an FIR No.196/2014 for offences under Section 366 of Ranbir Penal Code was registered and the investigation was set into motion. On December 15, 2014, the prosecutrix was recovered from the custody of the accused.
The statement of the prosecutrix under Section 164-A Cr PC was recorded. After investigation, it was found that prosecutrix, after being kidnapped, was raped by the respondent and accordingly, a charge-sheet for offences under Sections 363 & 376 of RPC was laid before the trial court.
The trial court anyhow acquitted the accused of the charges since the offence that he was accused of, could not be proved in the court.
It was noted during the court proceedings that the prosecutrix had been a subject of the two-finger test. While making an observation, the court said,
“Section 228A of IPC prohibits disclosure of the identity of the victim of certain offences, which includes an offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time.”
“Rape is not merely a physical assault but it is the destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.”
Court also observed that the two-finger test has been held unconstitutional by the Supreme Court, in the case of Lillu and Others v. the State of Haryana. It aids that the test was unconstitutional and violated the right to privacy of the rape survivors and was an affront to the physical and mental integrity and dignity.
During the hearings, the court also said,
“We direct that all the courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing the identity of rape survivors in their proceedings and judgments. A further direction is issued to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking “two-finger test” known as “per-vaginum examination” on the rape survivors.”
After listening to both sides of the arguments, the High Court issued an order on Thursday, asking them to desist from the two-finger test on rape-survivors and also asked them to avoid revealing the identity of the survivors during the court proceedings and judgements.
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