Jammu & Kashmir High Court Issues Strict Directions to Strongly Desist From Undertaking the “Two-Finger Test”

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On 24th December 2020, a Division Bench consisting of Hon’ble Mr. Justice Sanjay Dhar and Hon’ble Mr. Justice Rajesh Bindal heard the case of Mr. Aseem Sawhney v. Mohd. Imran Khan via video conferencing.

The appeal was filed by the State against the judgment passed by the learned Principal Sessions Judge, Bhaderwah, in the case of State v. Mohd. Imran Khan, where the RESPONDENT was acquitted for the offense committed under Section 376 (Punishment for Rape) of the Jammu and Kashmir State’s Ranbir Penal Code (RPC).

Facts of the case

In 2014, the prosecutrix was kidnapped by the RESPONDENT and was taken away in his car. A complaint was filed before the police by the maternal grandfather of the prosecutrix. Initially, an FIR was lodged under Section 366 (Kidnapping or abducting any woman to compel her marriage, etc) of RPC. But, after investigation, it was found that the prosecutrix had been kidnapped and raped by the RESPONDENT, due to which a charge-sheet for offenses under Section 363 (Punishment for kidnapping) and Sec 376 (Punishment for Rape) RPC was laid before the COURT. 

After the accused was put to trial, the learned trial COURT after hearing both parties came to the conclusion that the offense against the accused was not established and he was later acquitted. Hence, the present appeal was filed on the behalf of the State. 

Contentions of the PETITIONER

Learned Counsel for the State contended that the prosecutrix was a minor at the time of occurrence of the incident. Further, the counsel contended that the Trial COURT had disbelieved the prosecutrix’s statement on technicalities and flimsy reasons. 

Court’s Analysis

The COURT observed that the Trial COURT had mentioned the prosecutrix’s name at several instances in the judgment, which was strictly impermissible under the provisions of law. The COURT referred to Section 228A of IPC which prohibits the disclosure of the identity of the victim of certain offenses, which includes an offense under Section 376 of  IPC.

In order to explain how sensitive victims of sexual abuse need to be treated, the COURT referred to the case State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384, which held that:

“Trial in-camera improves the quality of the evidence of a prosecutrix because she would not be so hesitant to depose frankly as she may be in an open court, under the gaze of the public.”

The COURT also referred to the case of Bhupinder Sharma v. State of Himachal Pardesh (2003) 8 SCC 551 which held that:

“Keeping in view the social object of preventing social ostracism of the victim of a sexual offense, it would be appropriate that in the judgments, the name of the victim should not be indicated.”

The COURT further observed that the victim was subjected to the “two-finger test”, which was strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India. 

Further, the International Covenants on Economic, Social and Cultural Rights (ICESR), 1966 and United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provided that, “Rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent.”

The COURT referred to the case of Lillu and others v. State of Haryana, (2013) 14 SCC 643, which held the “two-finger test” unconstitutional:

“The ‘two-finger test’ and its interpretation violates the right of rape survivors to privacy, physical and mental integrity, and dignity.”

COURT’s Decision

The COURT recognized the need to implement the ban on the “two-finger test” on rape survivors in order to preserve and respect their privacy, integrity, and dignity. The COURT, thus issued directions to all the COURTS in the Union Territories of Jammu & Kashmir, and Ladakh, to avoid the disclosure of identities of rape survivors in their proceedings and judgments. 

Additionally, the COURT issued further directions to the Health professionals of the Union Territory of Jammu & Kashmir, and the Union Territory of Ladakh to strictly desist from undertaking ‘two-finger test’ known as ‘per-vaginum examination’ on the rape survivors.”


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