Gauhati High Court slams ‘two-finger’ test, upholds conviction for adopted child’s rape

“We are surprised to learn that a two finger test has been conducted by a Doctor, even though there have been decisions by the Supreme Court holding that the two-finger test and its interpretation as to whether the same give a clear indication that the prosecutrix was habitual to sexual intercourse, violates the right of rape survivors to privacy, physical and mental integrity and dignity,” the court said on July 23.

The case arose from allegations that the survivor, who had been adopted by the accused and his wife as a young child, was repeatedly sexually assaulted beginning in April 2022 when she was 13 years old. According to the prosecution, she initially revealed the abuse to her foster mother, who allegedly asked her not to share it with anyone. Months later, unable to bear the trauma any longer, she confided in a neighbour, leading villagers to alert the police and register an FIR in September 2022.

Justices Michael Zothankhuma and Rajesh Mazumdar said that the Supreme Court has ruled the two-finger test is scientifically invalid and amounts to professional misconduct. (Image enhanced using AI)

Court criticises use of banned practice

During the trial, the doctor who examined the survivor recorded that “two fingers passed” through her hymen. Referring to the Supreme Court‘s decisions in Lillu v State of Haryana (2013) and State of Jharkhand v Sainendra Kumar Rai (2022), the bench said such examinations have no scientific value and should not be carried out.

The Gauhati High Court said it was, therefore, surprising that the obsolete practice was still used in the present case. The bench also observed that an intact hymen does not rule out sexual violence and a torn hymen cannot be treated as proof of prior sexual intercourse because it may result from several other causes.

“The Supreme Court had ruled that the per-vaginum test has no scientific basis and re-traumatizes survivors. It also directed that any medical professional conducting the two-finger test would be guilty of professional misconduct,” the court said.

Two-finger test in India

In 2014, the Union health ministry released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’.

The guidelines are clear about the two-finger test, saying, “Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’ must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus [opening] has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.”

In fact, the guidelines state that a rape victim’s consent (or her guardian’s, if she is minor/mentally disabled) is necessary for any medical examination. Even if the consent is not provided, the victim cannot be denied medical treatment. However, these are guidelines and are not legally binding.

Survivor’s testimony

• The bench found the survivor’s testimony to be consistent, reliable and fully capable of sustaining the conviction. According to her evidence, the assaults began when her foster mother left for work and continued on several occasions.
• She told the court that whenever she resisted, the accused beat her with a stick and threatened to kill her.
• She eventually disclosed the abuse to neighbours because she could no longer bear the repeated assaults.
• The judges noted that her testimony before the trial court was corroborated by her statement recorded before a magistrate under Section 164 (recording of statements and confessions before a Judicial Magistrate) of the Code of Criminal Procedure.
• They also found that the defence failed to shake her evidence during cross-examination.

• The appellant argued that the FIR had been lodged several months after the alleged assaults began and that the delay suggested the allegations were fabricated.
• Rejecting the contention, the high court observed that delay in reporting sexual offences, particularly when the accused is a family member or guardian, is common and has repeatedly been recognised by the Supreme Court.
• The accused claimed he had falsely been implicated after scolding the child for refusing to attend school and allegedly communicating with a boy on a mobile phone.
• The high court found the explanation unconvincing, observing that the allegation regarding the mobile phone had never been put to the survivor during cross-examination and hence appeared to be an afterthought.
• The court also noted that no evidence had been produced to support the defence theory.

Investigation lapse

The judgment also highlighted an unusual lapse during the investigation. The investigating officer had not included the survivor as a prosecution witness in the chargesheet. The high court observed that the trial judge corrected the omission by summoning her as a court witness, ensuring that her account became part of the trial record.

The bench remarked that her testimony remained unshaken throughout the proceedings and there was no reason to doubt its credibility. It also referred to evidence that the accused had allegedly made an extra-judicial confession before villagers, noting that although such confessions are considered weak evidence, they can be relied upon when corroborated by other material on record.

Finding no infirmity in the trial court’s judgment, the Gauhati High Court dismissed the appeal and upheld the conviction and sentence imposed on the man. The court also directed that the amicus curiae who assisted in the appeal be paid their fees as per the applicable norms.