The Madras High Court has issued direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith on immediate basis and the same cannot be permitted to continue.
Deciding a criminal appeal wherein the accused was convicted for life for offences under POCSO Act, the Division Bench of Justice R. Subramanian and Justice N. Sathish Kumar observed that it is neccessary to put end on the practice of the two finger test as the same is being used in cases involving sexual offences, particularly, on minor victims.
The Court stated that in 2013, the Supreme Court had held that the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. It mentioned Lillu @ Rajesh & ANR. Vs. State of Haryana, 2013 Latest Caselaw 282 SC, IN RE ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES, 2019 Latest Caselaw 1299 SC,
The present appeal filed under Section 374(2) CrPC against an order of conviction and sentence under the POCSO Act of the accused, who was convicted for life for the offences under Section 5(l) read with Section 6(1) of the POCSO Act with a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for 3 months and 7 years rigorous imprisonment for an offence under Section 363 of IPC along with a fine of Rs.20,000/- in default to undergo simple imprisonment for 3 months.
Learned Additional Public Prosecutor was making a case for the prosecution theory in relation to testimony of medical professionals. He stressed that in Tamil difference between hymen not intact and hymenal tear cannot be put in very refined form and thus use of imperfect language in oral evidence cannot be a ground to discredit the testomony. In this course, he reminded the Court that the test is technically banned by the Apex Court.
Additionally, Learned Counsel for the appellant also submitted that the two finger test has been held to be unconstitutional and several State Governments have banned it. Citing catena of judgements of the Top Court, he urged the Court to do the same.
Learned Counsel also drew Court's attention to the article in the Hindu dated 10.04.2022 wherein, the author has pointed out that the protocols of medical examination prescribed by the Supreme Court are often not implemented in cases of sexual violence relating to children.
Section 363 of IPC: Kidnapping
The accused was charged under Section 363 of IPC for having kidnapped the minor girl. The Court stated that a person who takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, from the lawful guardianship of a guardian, is said to have kidnapped the minor. The meaning of the word 'taking' was considered by the Supreme Court in S.Varadharajan vs. State of Madras
The meaning of the word 'enticing' was also considered by the Supreme Court in the said judgment and it was held that in order to prove the offence of kidnapping, it must be established that the accused had a role in her walking out and he had taken her away from her house.
In this view, the Court observed that the victim girl had walked out of her house on her own in the pretext of having some old clothes stitched, she had travelled with the accused on her own will and never made an attempt to escape from his custody.
"The above conduct of the minor girl would show that she had gone on her own volition and therefore, the essential ingredients of the offence under Section 363 IPC has not been made out. We, therefore, conclude that the conviction for the offence under Section 363 IPC is not justified and the accused should be acquitted of the offence under the said section."
Contradiction b/w Section 164 statement and the Oral Evidence
The Court also found that under Section 164 statement, the victim girl didn't speak about penetrative sexual assault but she the said statement had not been put to the victim girl while she was tendering her substantial evidence before the Court in order to elicit the contradiction. In the absence of such exercise, the contradiction between Section 164 statement and the oral evidence cannot be taken advantage of by the accused in order to dislodge the presumption that is created under Section 29 of the POCSO Act, the Court ruled.
"Section 29 of the POCSO Act creates a presumption of guilt. No doubt, Courts have held that the presumption under Section 29 is not absolute and it is for the prosecution to prove the foundational requirements of commission of an offence in order that the presumption can be drawn. In the case on hand, if we scan the evidence of the victim girl and the medical evidence available, we will have to necessarily concede that the prosecution has proved the foundational facts. To our dismay, we find that there has been no attempt by the accused either by way of cross examination of the victim girl or by production of any other evidence to project a motive and to dislodge the presumption under Section 29 of the POCSO Act. Section 30 of the POCSO Act creates a presumption of culpable mental state on the part of the accused. Though Section 30 provides that the accused can prove the fact that he had no such mental state with respect to the act charged, such an attempt has not been made."
The Court thus affirmed the findings of the trial Court.
The Criminal Appeal was partly allowed. The conviction and sentence for the offence under Section 363 IPC was set aside in toto. The conviction for the offences under Section 5(l) and 6(1) of the POCSO Act was confirmed and the life sentence was, however, reduced to 20 years of rigorous imprisonment. The fine of Rs.1,00,000/- and the default sentence of simple imprisonment for 3 months, has been confirmed.
Case Title: Rajivgandhi vs The State
Case Details: Criminal Appeal(MD)No.354 of 2021
Coram: Justice R. Subramanian and Justice N. Sathish Kumar
Read Judgement Here:
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