Two-Finger Test Traumatises Rape Victims, Doctors Should Desist From Such Examination Affecting Dignity: Sikkim High Court

The Sikkim High Court, Gangtok while dealing with an appeal filed by the accused of the offence under Sections 376 and 354 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 directed that the doctors should desist from medical examinations like Two-finger test as the same traumatizes the rape survivors and affects the dignity of the victims.

Earlier on November 1, 2022, the Apex Court had held that the two-finger test re-victimizes and re-traumatizes women and is an affront to their dignity, thus it must not be conducted in cases alleging rape and sexual assault.

The Division Bench comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan while relying upon the case of Lillu alias Rajesh and Another vs. State of Haryana (2013) 14 SCC 643 held –

"The Supreme Court has clearly enunciated that the two-finger test is violative of the rights of the victims/rape survivours and medical practitioners are therefore to desist from such examination which affects the dignity of the individual. The observation of the Hon‟ble Supreme Court being the law of the land in binding and hence, there should be no tests as described above to repeatedly traumatise the victim."

The Bench also directed that the accused be sentenced to undergo simple imprisonment of two years under Section 354 of the IPC while upholding the sentence of 10 years under Section 376 of the IPC imposed by the Trial Court. The Court stated that "Both the sentences shall run concurrently."

Advocate Gita Bista appeared for the appellant i.e., the accused while Additional Public Prosecutor S.K. Chettri represented the respondent i.e., the State.

In the present case, the appellant was convicted and sentenced to 10 years imprisonment in the year 2021 for the aggravated penetrative sexual assault of two minors. The appellant was alleged to have committed such an act in his room at the minor's residence by touching private parts, kissing, molesting, and inserting pennis into the vagina, and threatened the victims with dire consequences if they reported the same.

The question before the High Court was whether the Trial Court was correct in arriving at a finding that the appellant had committed the offence under Section 375 punishable under Sections 376 and 354 of the IPC.

The Court while examining the witnesses and the statements of the victims noted –

"A perusal of the evidence in its entirety from P.W.1 to P.W.21 reveals that only P.W.1 and P.W.10, the victims, are aware of the alleged incidents, the other witnesses are merely hearsay witnesses."

The Court observed that one of the victims had embellished her narration with additional allegations in her deposition before the Court while the other victim was consistent in her statements. The Court while considering this fact stated –

"Thus, 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."

Accordingly, the High Court disposed of the appeal.

Cause Title - Thutop Namgyal Bhutia @ Aku Namgyal v. State of Sikkim

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