This Case Summary is written by Harsha Singh, a final year law student at Amity Law School, Noida
In this procedure, two fingers are inserted into the rape victim’s vagina by a medical professional in an effort to “test the flexibility of the vagina” and see if the hymen is ruptured. The test is frequently used to label rape victims as being “habituated to sex.” The medical proof of prior sexual encounters is used to refute the rape allegation, either to imply that the victim lied about the rape, to imply that the rape was not harmful, or to imply that the victim is morally repugnant and hence not entitled to justice.
The Supreme Court’s ruling in the case of The State of Jharkhand versus Shailendra Kumar Rai stated that anyone who performs a “two-finger test” or per vaginum examination on a victim of sexual assault will be considered guilty of misconduct. In this case, Justices D.Y. Chandrachud and Hima Kohli, in the order dated 31.11.2022, overturned the Jharkhand High Court’s decision and found the respondent guilty of rape and murder under the Indian Penal Code (IPC). The appeal was filed to challenge the Jharkhand High Court’s decision to set aside the conviction and life imprisonment of the respondent under Sections 302, 376, 341, and 448 of the IPC.
According to the prosecution’s case, on the afternoon of November 7, 2004, the respondent allegedly entered the home of the victim and deceased in Narangi village. It is claimed that he forcefully pushed her down and raped her while threatening to harm her if she made any noise. When she screamed for help, the respondent purportedly poured kerosene on her and set her on fire with a matchstick. Her cries attracted her grandfather, mother, and a resident of the village, who rushed to her aid. The respondent then fled the scene upon seeing them. The victim was taken to Sadar Hospital in Deoghar, where she received medical attention for her injuries. The police received information about the incident and recorded the victim’s statement on the same day. FIR No. 163 of 2004 was registered at PS Sarwna, and the investigation began. After the investigation, the IO submitted a charge sheet under Sections 307, 341, 376, and 448 of the IPC. The victim later died on December 14, 2004, resulting in the submission of a supplementary charge sheet against the respondent under Section 302 of the IPC. The respondent has denied the charges against him.
- Whether the dying declaration of the victim to the police officer will be admissible under the Indian Evidence Act, 1872
- Whether The evidence presented by the prosecution has proven, beyond a reasonable doubt, that the respondent is guilty of the accusations.
- Whether a victim of rape being “habituated with sex” will affect the conclusion of a reported rape case
The appellant argued that the High Court misunderstood two crucial facts: first, that the post-mortem examination of the deceased was conducted within 12 hours of the time of death, and second, that Dr RK Pandey was attending to a patient on the table next to them, not in a room adjacent to where they were sitting. Despite these contentions, the respondent maintained that the Medical Board’s report did not offer a solid judgment and that the dying declaration was the only proof that the respondent raped the deceased. However, the High Court deemed the victim’s statement invalid as a dying statement based on a previous ruling in the case of Moti Singh and Anr. V. State of Uttar Pradesh. The High Court’s reliance on this ruling was deemed inappropriate since the post-mortem report revealed that the victim died from septicemia caused by her burn injuries, making the victim’s statement relevant to the events leading up to her death and the reason why she died.
The post-mortem report confirmed that the respondent sexually assaulted the victim before setting her on fire, which ultimately led to her demise. As a result, the dying declaration met the requirements of Section 32(1) and constituted a relevant fact. The prosecution established beyond a reasonable doubt that the respondent was guilty of the accusations. Despite the Sessions Court’s decision, the High Court wrongly acquitted the respondent. Nonetheless, the Supreme Court used its power to uphold the rule of law and reverse the decision to avoid a miscarriage of justice. The respondent was sentenced to life imprisonment under Section 302 and ten years of imprisonment under Section 376 of the IPC. These sentences were intended to follow one another.
FINDINGS AND REASONING
There was a complete ban on the “two finger” test as it was demeaning in nature, it had no scientific proof, and it wasn’t substantial evidence in any sense.
Indian Evidence Act, 1872, section 32, although a dying declaration should ideally be recorded by the magistrate if a dying declaration has been made in front of the police, it wouldn’t be inadmissible for that reason alone. It will still be a valid admission.
Indian Evidence Act, 1872 section 375, The question of whether a woman is accustomed or habitual to sexual intercourse is not important in deciding whether the elements of Section 375 of the Indian Penal Code (IPC) are present in a given case.
Through their parting remark, the court yet again denounced the “two-finger” test as a way to determine rape in a victim as it proves to be a harmful tool to victim blame, humiliate the victim and question their chastity. The test has been demanded multiple times in India, such as by the Verma Committee formed under the former CJI JS Verma, who was soon after the Nirbhaya case recommended the ban of the “two finger” test, stating that the laxity of the vagina, which is tested by the said test cannot be used to come to a conclusion that a sexually active woman cannot be raped. A handbook on Sexual harassment by WHO has also stated, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
In 2014, the Union Health Ministry published a set of guidelines and protocols called “Medico-legal care for survivors/victims of sexual violence.” According to these guidelines, the practice of using the “two-finger test” to determine whether rape or sexual violence has occurred is not acceptable. The size of the vaginal opening does not provide any relevant information about sexual violence cases. Per-vaginum examination may only be performed on adult women when it is medically necessary.
Although a medical examination is crucial for forensic investigation, it is not definitive proof of rape since rape hinges on the consent of all parties involved, except in the case of minors, where consent is irrelevant. The established legal stance is that medical evidence serves only as supporting evidence, as it can only confirm the occurrence of sexual intercourse, whereas determining whether an act constitutes rape is a matter of law.
The guidelines weren’t legally binding, and any act contravening these guidelines didn’t attract criminal prosecution. Then and again, these were ignored, and it was high time for the apex court to make an order regarding the same because not only was this test highly violative, but it also put the laws of our nation extremely backward to let such an immoral practice to still exist.
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