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The Madurai bench of the Madras High Court directed the State Government ‘to immediately ban the practice of the two-finger test’ that is conducted by medical professionals on sexual assault survivors.

An appeal was filed by a man against the order of a trial court convicting and sentencing him to life imprisonment for offenses punishable under Section 5 (i) (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act (POCSO) Act and Section 363 (kidnapping) of the Indian Penal Code.

A bench of Justice R Subramanian and Justice N Sathish Kumar while considering an appeal in a case under POCSO Act, 2012, held that the test is ‘unconstitutional’ and directed the State Government to end the practice.

The bench while relying on several Supreme Court judgments stated that-

"In view of the above judicial pronouncements, we have no doubt that the two-finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two-finger test on victims of sexual offenses by the medical professionals forthwith."

Advocate S Sivasubramanian, the counsel for the appellant stated that the accused had enticed a 16-year-old girl, kidnapped her, and had repeated sexual intercourse with her.

Sivasubramanian contended that the entire evidence, if read from a proper perspective, would show that the victim girl had gone with the accused on her own and that it was a consensual relationship, regardless of her age.

He further contended that some inconsistencies were there in the statement given by the doctor who examined the minor and administered a two-finger test.

On the other hand, Additional Public Prosecutor T Senthil Kumar submitted that the Supreme Court has disapproved of the practice of the two-finger test, and added that it was high time that the practice is stopped.

The counsel for the appellant agreed with this particular submission and stated that the two-finger test has been held unconstitutional by various courts and several states have even banned it.

Some of the precedents that the court relied upon are:

• Lillu @Rajesh & Anr. v. State of Haryana (2013), in which the Supreme Court held that the two-finger test and its interpretation violates the right of rape survivors to privacy and physical and mental integrity and dignity.
• EERA vs. State (NCT of Delhi) (2017), the Hon'ble Supreme Court while dealing with the POCSO Act, had observed that the interest of the child both as a victim as well as a witness needs to be protected and added that stress is on providing the child-friendly procedure. The dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy a seminal place in the text of the POCSO Act.
• Re: Assessment of the Criminal Justice System in response to Sexual Offences (2019), the Supreme Court had called for a status report on "whether the medical experts have done away with the Per-Vaginum examination commonly referred to as 'Two-finger test' and whether any directions have been issued by the states in this regard?''
• State of Gujarat v. Rameshchandra Ramabhai Panchal (2020), where the Gujrat High Court held that the two-finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value.

"In view of the above judicial pronouncements, we have no doubt that the two-finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two-finger test on victims of sexual offenses by the medical professionals forthwith," the bench stated.

On an examination of the facts and circumstances of the case, the Court found that the offense of kidnapping under Section 363 IPC would not be justified and that the accused should be acquitted of the aforesaid offense.

Adverting to the conviction for the offenses under the POCSO Act, the Court held that the prosecution had proved the foundational facts.

Coming to the quantum of sentence, we are of the opinion that a minimum sentence of imprisonment for a period of 20 years would suffice, court stated.

The bench concluded by stating that “the Criminal Appeal is partly allowed. The conviction and sentence for the offense under Section 363 IPC is set aside in total. The conviction for the offenses under Section 5(l) and 6(1) of the POCSO Act is confirmed and the life sentence is, 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, is confirmed.”

Case Title: Rajivgandhi v. The State