Strictly desist from two-finger test, revealing identity of rape survivor: Jammu & Kashmir High Court

Rape destroys the personality of a victim and courts should, therefore act responsibly and with sensitivity while dealing with cases of rape, the High Court said.
Strictly desist from two-finger test, revealing identity of rape survivor: Jammu & Kashmir High Court
Justices Rajesh Bindal and Sanjay Dhar

Health professionals across the Union Territory of Jammu and Kashmir, and Union Territory of Ladakh should strictly desist from carrying out two-finger test on rape survivors, the Jammu & Kashmir High Court ordered on Thursday (State V/S Mohd. Khan).

A Bench of acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar also directed all subordinate court in Jammu & Kashmir and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments.

"We direct that all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments. A further direction is issued to 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," the Court ordered.

The observations were made after it came to the notice of the High Court that the trial court in a judgment acquitting a rape accused had mentioned the name of the survivor several times. The High Court had also found that the rape survivor was subject to two-finger test.

Rape, the Court said, is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with cases of rape, particularly, while referring to the prosecutrix, it added.

The Court was hearing an appeal filed against a judgment passed by the Principal Sessions, Judge, Bhaderwah whereby the accused/respondent was acquitted of the charge of rape.

It further reads:

The prosecutrix in the case had gone missing on December 13, 2014 and a complaint in this regard was lodged before the police by the maternal grandfather of the prosecutirx. It was found that prosecutrix had been kidnapped and taken away by the respondent in a car.

FIR was registered for offences under section 366 Ranbir Penal Code (RPC) and investigation was set into motion.

On December 15, 2014, the prosecutrix was found in the custody of the respondent/accused and her statement under section 164-A of Code of Criminal Procedure was recorded.

After investigation of the case, it was found that the prosecutrix, after being kidnapped, was raped by the respondent and accordingly, charge-sheet for offences under Sections 363/376 RPC was laid before the trial court.

Charge for offence under section 376 RPC was framed against the accused and he was put to trial.

The trial court, however, acquitted the accused holding that the offence against could not be proved.

After trial of the case and hearing the parties, the learned trial Court came to the conclusion that the offence against the accused/respondent in not established and he was acquitted of the charge.

In appeal against acquittal, Additional Advocate General, Aseem Sawhney, on behalf of J&K argued that the prosecutrix was minor at the time of occurance and she had in her statement fully supported the prosecution case.

He further argued that the trial court had disbelieved the statement of the prosecutrix on mere technicalities and flimsy grounds.

During the course of the hearing, the Court noted that as per the trial court records, the prosecutrix had been subjected to “two finger test”.

The Court proceeded to place relinace on Supreme Court Judgment in a case of Lillu and others v. State of Haryana wherein the top court had held that “two finger test” is unconstitutional as it violates the right to privacy of the rape survivors and was an affront to the physical and mental integrity and dignity.

“It is 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, so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India, on the subject are taken seriously”, the Court said.

Apart from that, the Court also noted that trial court mentioned the name of prosecutrix at several places in its judgment.

“Although, prohibition contained in Section 228-A (Prohibits disclosure of identity of the victim of certain offences) 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 judgment, so as to avoid embrassment and humiliation to a victim of rape,” the High Court reaffirmed.

The case itself was admitted and will now be heard on merits.

[Read judgment]

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Jammu kahsmir HC order on two finger test.pdf
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