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Avoid disclosing the identity of rape survivors in proceedings and judgments, Health Professionals desist from undertaking “Two-Finger Test” | J&K High Court

On Thursday 24, 2020 the Division Bench of the High Court of Jammu and Kashmir comprises of Hon’ble Mr. Justice Rajesh Bindal, Chief Justice (Acting) and Hon’ble Mr. Justice Sanjay Dhar allowed the application of the State and granted leave to appeal against the judgment passed by the learned Principal Sessions Judge, Bhaderwah whereby the accused had been acquitted of the Charge for offence under Section 376 RPC.

The Court directed 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.

The Court also directed 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

Case of the Prosecution:

On 13-12-2014, the prosecutrix went missing and in this regard a complaint was lodged before the police by the maternal grandfather of the prosecutrix. It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. FIR No.196/2014 for offences under Section 366 RPC was registered and an investigation was initiated.

On 15.12.2014, the prosecutrix was recovered from the custody of the respondent/accused. The statement of the prosecutrix under Section 164-A Cr.P.C. was recorded. After investigation of the case, it was found that the prosecutrix, after being kidnapped, was raped by the respondent, and accordingly, a charge-sheet for offences under Sections 363/376 RPC was laid before the trial Court.

Thereafter, Charge for offence under Section 376 RPC was framed against the accused and he was put to trial. After the trial of the case and hearing the parties, the learned trial Court came to the conclusion that the offence against the accused/respondent is not established and he was acquitted of the charge vide the impugned judgment.

Arguments on behalf of the Petitioner-State:

The learned counsel for the petitioner-State contended that the prosecutrix, in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution’s case and the learned trial Court has disbelieved the statement of the prosecutrix on mere technicalities and for flimsy reasons.

Observations of the Court:

The Court observed that the learned trial Judge has mentioned the name of the prosecutrix at several places in the said judgment, which is impermissible in law. Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes 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.

The Court said, “prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape.

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.

_the Bench said

The Court referred to a judgment in a case titled State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384, wherein the Supreme Court emphasized that victims of sexual abuse or assault need to be treated with sensitivity during investigation and trial and that trial of rape cases should be generally held in camera. 

Bhupinder Sharma v. State of Himachal Pardesh (2003) 8 SCC 551, this judgment was also referred in this regard. 

The Supreme Court in the case of Lillu and others v. State of Haryana, (2013) 14 SCC 643, has held that the “two-finger test” and its interpretation violates the right of rape survivors to privacy, physical and mental integrity, and dignity. Thus, the “two-finger test” has been declared unconstitutional. -Judgment referred

The Court said, ‘in the instant case, the prosecutrix, who was minor at the relevant time, has been subjected to ‘two-finger test’, which must have violated her privacy, physical and mental integrity and dignity.’

The Court observed that it is the need of the hour to implement the ban on “two-finger test” on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir, and Ladakh.

The Court while issuing notice to the respondent further directed that the copies of this order be sent to the Registrar General of the High Court and Secretaries to the Govt., Health Department of Union Territories of J&K and Ladakh with a direction to circulate the order to all Courts/Hospitals for ensuring its compliance in letter and spirit.

State of J&K vs Mohd Imran Khan