Two-Finger Test Violates Rape Survivors' Privacy, Dignity And Physical & Mental Integrity: Gauhati High Court

The Gauhati High Court has upheld the conviction and 20-year sentence imposed on a man under the Protection of Children from Sexual Offences (POCSO) Act for repeatedly raping his adopted daughter, while expressing surprise that a doctor conducted a two-finger test on the survivor despite Supreme Court decisions on the issue.

A Division Bench of Justice Michael Zothankhuma and Justice Rajesh Mazumdar observed,

"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 observation came while deciding a criminal appeal filed by one Biren Nag against the judgment of the Special Judge, POCSO, Karbi Anglong, Diphu, convicting him under Section 6 of the POCSO Act and sentencing him to undergo rigorous imprisonment for 20 years for repeatedly raping his adopted daughter.

According to the prosecution, the victim, who had been adopted by the appellant during her childhood, was repeatedly raped by him from April 2022. She informed her foster mother about the incidents, but was told not to disclose them to anyone. When the assaults became unbearable, she disclosed them to a woman from the village, following which the matter was reported to the police. After investigation, the appellant was charge-sheeted under Sections 376 and 201 IPC read with Section 6 of the POCSO Act. The Trial Court convicted him under Section 6 of the POCSO Act while acquitting him of the charge under Section 201 IPC.

Before the High Court, the appellant contended that the allegation was false and had been made because he had assaulted the victim for refusing to attend school and for messaging a boy on a mobile phone.

It was further argued that the FIR had been lodged after about five months, giving sufficient time for embellishment. The prosecution submitted that the delay was explained because the victim's foster mother had prevented her from disclosing the assaults and that the victim's testimony stood corroborated by her statement under Section 164 CrPC and the evidence on record.

The High Court found that the explanation for the delay in lodging the FIR was plausible. Referring to the victim's evidence, the Court observed, "Keeping the above in view, it is quite understandable for the traumatized victim girl to have remained quiet for some time and to have blurted out the said fact after it became unbearable to withhold the continuous rape."

The Court further held, "Keeping the above in view, we do not find any ground to disbelieve the allegation of the victim that she had been raped by her father, only because of the delay in filing the FIR, especially when the same has been filed by persons, living in the village, who are not the relatives of the victim and have no enmity with the appellant."

While examining the medical evidence, the Court noted that the doctor had recorded that two fingers could pass through the victim's hymen and thereafter conducted a two-finger test. Referring to the law declared by the Supreme Court in Lillu alias Rajesh and another Vs. State of Haryana reported in (2013) 14 SCC 643 and in the case of State of Jharkhand Vs. Sainendra Kumar Rai reported in (2022) 14 SCC 299, the Bench observed,

"By the above two judgments, the Supreme Court had ruled that the pre-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. It also held that an intact hymen does not rule out sexual violence nor does a torn hymen prove past sexual intercourse, as it can be torn due to various other activities, such as sports, accidents, etc."

The High Court, however, held that the prosecution case stood proved on the evidence on record. It observed, "The above being said, what is clear is that the victim has been subjected to rape by the appellant."

Rejecting the defence that the victim had falsely implicated the appellant after he disciplined her, the Court observed, "The explanation given by the appellant appears to be an after-thought, as none of the witnesses have stated as such in their evidence."

The Bench also noticed that the Investigating Officer had not cited the victim as a prosecution witness in the charge-sheet. However, it noted that the Trial Court examined her as a Court Witness and observed, "The evidence/ testimony of the victim girl as CW-1 has not been shaken and the cross-examination of the victim girl has not shown any preponderance of probability that she had made up a false case."

Finding no reason to interfere with the Trial Court's judgment, the High Court dismissed the appeal, holding, "In view of all the above reasons, we do not find any reason to interfere with the impugned judgment passed by the learned Trial Court. The appeal is accordingly dismissed."

Case No.: CRL.A.(J) No. 145 of 2023

Case Title: B v. State of Assam & Anr.

Citation: 2026 LiveLaw (Gau) 119

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