A Division Bench of the Hon’ble High Court of Jammu and Kashmir, consisting of Acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar, in the case of State of J & K V/s Md. Imran Khan (24.12.2020), while reminding the mandate of Section 228A of the J&K Ranbir Penal Code, directed the Trial Courts of the Union Territories of Jammu and Kashmir and Ladakh “to avoid disclosing identity of rape survivors in their proceedings and judgments.” Furthermore, the Bench issued directions to all the health professionals of Union Territory of Jammu and Kashmir and Union Territory of Ladakh “to strictly desist from undertaking ‘two finger test’ known as ‘per-vaginum examination’ on the rape survivors.”
Factual Background
In 2014- the prosecturix went missing and in this regard a complaint was lodged before the police by the maternal grandfather of the prosecutirx. It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. An FIR for offences u/s 366 RPC was registered and investigation was set into motion. On 15.12.2014, the prosecutrix was recovered from the custody of the respondent/accused. Her statement u/s 164-A Cr.P.C. 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 u/Ss. 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. After trial of the case and hearing the parties, the learned trial Court came to the conclusion that the offence against the accused/respondent is not established and he was acquitted of the charge vide the impugned judgment.
The State thus sought leave to file appeal against this Trial Court judgment.
Case of the Petitioner- the State
It was contended that: in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case. The learned trial Court disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.
Reasoning and Decision of the Court
Allowing the application and granting the leave to appeal against the impugned judgment in favour of the petitioner- the Court directed notice to be issued to be respondent and also before parting with this order the Court felt it necessary to comment on certain things, which it noticed from a perusal of the impugned judgment. The Court thus recorded its observations with respect to the following two aspects: (a) Mention of the prosecutrix’s name at several places in the judgment, (b) “two finger test” to which the prosecutrix was subjected.
Mention of the prosecutrix’s name
The first such thing being the mention of prosecutrix’s name at several places in the said judgment- which the Court held to be impermissible in law.
The Court observed that:
“Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time.”
Although, prohibition contained in Section 228A 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 judgments, so as to avoid embarrassment and humiliation to a victim of rape. Rape 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 the cases of rape, particularly, while referring to the prosecutrix.”
While citing the relevant case laws, the Bench observed that this issue was discussed before the Supreme Court and various High Courts of the country in a number of cases.
“In State of Punjab v. Gurmeet Singh, the Supreme Court, while emphasizing that victims of sexual abuse or assault need to be treated with sensitivity during investigation and trial and that trial of rape cases should be generally held in camera,
The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime.”
The Court thus concluded this aspect by observing that:
“From afore-noted judgments of the Supreme Court, it is clear that all Courts are bound to avoid disclosure of name of rape victim(s) in the court proceedings as well as in their judgments. This dictum of law, it seems, has been ignored by the learned trial Court in the instant case. We, therefore, feel a need to reiterate and remind the trial Courts of the Union Territories of Jammu & Kashmir, and Ladakh to follow the aforesaid dictum in letter and spirit while dealing with cases of rape and crime against women.”
“Two finger test”
The Bench noted that: the International Covenants on Economic, Social and Cultural Rights, 1966, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent. “As per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.”
On the basis of aforesaid Covenants, the Supreme Court in the case of Lillu and others v. State of Haryana, (2013) 14 SCC 643,came to the conclusion that “two finger test” and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, “two finger test” has been declared as unconstitutional.”
The Court then reiterated Guideline 18-B of the guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India for health professionals for dealing with survivors of sexual violence, which were as follows:
“18. Local examination of genital parts/other orifices
B. In case of female survivors, the vulva is inspected systematically for any signs of recent injury such as bleeding, tears, bruises, abrasions, swelling, or discharge and infection involving urethral meatus (…) and hymen.
Examination of the vagina of an adult female is done with the help of a sterile speculum lubricated with warm saline/ sterile water. Gentle retraction allows for inspection of the vaginal canal. Look for bruises, redness, bleeding and tears, which may even extend onto the perineum, especially in the case of very young girls.
In case injuries are not visible but suspected; look for micro injuries using good light and a magnifying glass/ colposcope whatever is available. If 1% Toluidine blue is available it is sprayed and excess is wiped out. Micro injuries will stand out in blue. Care should be taken that all these tests are done only after swabs for trace evidence are collected.
Per speculum examination is not a must in the case of children/young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anaesthesia in case of minors and when injuries inflicted are severe. If there is vaginal discharge, note its texture, colour, odour.
The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented.
Genital findings must also be marked on body charts and numbered accordingly.”
From a perusal of the aforesaid guidelines, the Court observed that: “two finger test”, which, as per the medical term is called per-vaginum examination, has been strictly prohibited under the guidelines and protocols. It was also noted that: these guidelines were adopted by the Government of Union Territory of J&K and were applicable to the health professionals of the Union Territory with full force.
Showing concern about violation of privacy, Court expounded:
“Inspite of all this, in the instant case, it appears that the prosecutrix, who was minor at the relevant time, has been subjected to two finger test, which must have violated her privacy, physical and mental integrity and dignity.”
Emphasizing the need to ban ‘two finger test’- Court stated:
“It is the 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.”
HELD
“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.”
Case Details
Name: State of J & K V/s Md. Imran Khan
Case No.: SLA No. 38/2018
Date of Decision: 24 December 2020
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