DB deplores trial court for naming rape victim, directs doctors not to conduct ‘two-finger test’



JAMMU: A Division Bench of J&K High Court comprising Chief Justice (A) Rajesh Bindal and Justice Sanjay Dhar, while hearing a acquittal appeal in rape case, directed Trial Courts of Jammu, Kashmir & Ladakh not to disclose name of victim in judgement and also directed all 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 rape survivors.
In an appeal filed by Govt against acquittal of Mohd Imran Khan through AAG Aseem Sawhney, in which AAG Assem Sawhney submitted that as per prosecution, on December 13, 2014, the prosecturix went missing and in this regard a complaint was lodged with police by maternal grandfather of the prosecutirx. During investigation, it was found that prosecutrix had been kidnapped and taken away by respondent in a car. Accordingly, a FIR No.196/2014 for offences under Section 366 RPC was registered and investigation was set into motion. On December 15, 2014, the prosecutrix was recovered from custody of accused. The statement of the prosecutrix under Section 164-A Cr PC was recorded. After investigation, it was found that prosecutirx, after being kidnapped, was raped by respondent and accordingly, charge-sheet for offences under Sections 363 & 376 of RPC was laid before the trial Court.
Division Bench observed that AAG Aseem Sawhney submitted that the prosecutrix, in the instant case, was minor at time of occurrence and she had in her statement recorded before the Court fully supported prosecution case. According to the learned counsel, the learned trial Court has disbelieved the statement of prosecutrix on technicalities and for flimsy reasons. Keeping in view the contentions raised by learned AAG, a prima facie case for grant of leave to file appeal is made out. Accordingly, the application is allowed and leave to appeal against impugned judgment is granted in favour of petitioner.
Before parting with order, Division Bench observed that it is necessary to comment on certain things, which we have noticed from a perusal of the impugned judgment. The trial Judge has mentioned name of the prosecutrix at several places in its judgment, which is impermissible in law as Section 228A of IPC prohibits disclosure of identity of victim of certain offences, which includes offence under Section 376-IPC. In pari materia to the aforesaid provision is Section 228A of J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time.
DB further observed that although, prohibition contained in Section 228A may not strictly apply to 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 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 cases of rape, particularly, while referring to the prosecutirx and instant issue has been a matter of discussion before Supreme Court and various High Courts of the country in a number of cases. cDB observed 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 court proceedings as well as in their judgments. This dictum of law, it seems, has been ignored by learned trial Court in the instant case. We, therefore, feel a need to reiterate and remind trial Courts of the Union Territories of Jammu & Kashmir, and Ladakh to follow aforesaid dictum in letter and spirit while dealing with cases of rape and crime against women.
DB further observed that another issue that it has come to the notice of court from reading of the trial Court record and the impugned judgment is that the prosecutrix in the case has been subjected to ‘two-finger test’. 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 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. Apart from above, the Ministry of Health and Family Welfare, Govt. of India has issued guidelines and protocols for health professionals for dealing with survivors of sexual violence.
DB observed that after perusal of the guidelines, it is clear that ‘two finger test’ which, as per the medical term is called per-vaginum examination, has been strictly prohibited under guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India. It is pertinent to mention here that these guidelines stand adopted by Government of Union Territory of J&K and are applicable to the health professionals of the Union Territory with full force.
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.
DB Observed that it is the need of 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 judgment of Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India, on the subject are taken seriously.
With these observations, Division Bench directed all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments.
DB also directed 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 ‘pre-vaginum examination’ on rape survivors.


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