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Sikkim HC Expressed Concern Over ‘Two Finger Test’, Held ‘Violative of Rights of Rape Survivors’

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Akansha Upadhyay

Published on: 25 November 2022 at 20:58 IST

The Sikkim High Court asked doctors to refrain from the two-finger test in rape cases, observing that such medical examination offends the dignity of the person.

While hearing a criminal appeal in a rape case, a division bench comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan expressed concern over the method adopted by the doctors in the medical examination of the victim.

The apex court recently reiterated that “two-finger test” or pre-vaginal test “should not be done” and warned that non-compliance of its directions would amount to ‘misconduct’.

A division bench headed by Justice Rai made the observation in its judgment on an appeal filed by a convict against the trial court’s verdict. He was convicted in August 2021 of aggravated sexual assault of two minors and sentenced to ten years in prison.

The bench noted that while one of the victims “embellished her story with additional allegations in her statement before the court”, the other victim was consistent in her statements.  Disregarding the evidence relating to penetrative sexual assault on the first victim (PW1), the court however noted that her statements do not rule out offense under Section 354 of the IPC.

“…although the Learned Trial Court observed that the Appellant was responsible for penetrative sexual assault on both P.W.1 and P.W.10, on consideration of the evidence discussed above, we conclude that the Appellant committed penetrative sexual assault on P.W.10 and outraged the modesty of P.W.1.”

“Consequently, there is no reason for this Court to interfere with the finding of the Learned Trial Court that the Appellant had committed the offence punishable under Section 376 of the IPC on P.W.10.”

“However, we differ from the finding that the offence under Section 376 of the IPC had also been committed on P.W.1 in view of her vacillating evidence which is thus unreliable.”

The Court, while upholding the sentence under Section 376 IPC, sentenced the accused to simple imprisonment for two years under Section 354 IPC against PW1 for the offense committed by him.

Regarding the sentence, the judge gave decision that both the sentences will run concurrently.