STATE OF GUJARAT v. RAMESHCHANDRA RAMABHAI PANCHAL
WRIT PETITION (CRIMINAL) 122of1996 and R/Criminal Appeal No. 25of1996
DECIDED ON: January 17, 2020
Case in Brief:
A sixteen-year-old minor girl was forcefully abducted and violated by the accused for an extended period of time. After the victim escaped from her captor, the family filed an FIR against the accused. The victim, in the course of the investigation, was subjected to the two finger test as part of the medical examination where two fingers are inserted into the victim’s vagina to ascertain the laxity of the vaginal muscles and the state of the hymen.
The High Court of Gujarat held that the two-finger test used for scientific examination, in cases of sexual assault survivors is unconstitutional and per so have no forensic value. The Court observed that the two-finger test violates the rights of the victim when it comes to privacy, dignity, and physical integrity. Further, the two finger test can lead to situation where consent of the victim can be presumed based on past sexual history.
Both appeals arise from the same judgment and are therefore tried together in the High Court of Gujarat. Criminal Appeal No 25 of 1996 is directed against the judgment where the accused has been convicted of being guilty under Sections 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc) and 363 (Punishment for Kidnapping)of the Indian Penal Code (hereinafter referred to as “IPC”).
Criminal Appeal 122 of 1996 was instituted against the judgment pronouncing the accused acquitted of the offense of rape under Section 376 (Punishment for Sexual Assault) of the IPC. Upon pronunciation of the judgment, it was discovered that the victim was below 16 years of age at the time of committing the crime. The Court acknowledged that a mistake was made, but declined to take any further action as the order of acquittal was pronounced at that point.
The victim was a young girl aged below 16 years at the time of the commission of the crime and was forcefully taken from her home by the accused. The accused kept the victim at his house for a few days before she was moved to his brother’s house from where she managed to escape.
While the victim was kept captive by the accused, she was ravished forcefully. The victim went missing on 26.03.1994 and an FIR was filed by the victim’s mother on 10.04.1994, after which investigation commenced. The victim as well as the accused were sent for medical examination after the arrest of the accused. The case was tried in the Sessions Court under Section 209 (Commitment of case to Court of Session when the offense is triable exclusively by it) of the Code of Criminal Procedure, 1973.
“Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.”
“Whoever kidnaps any person from India or front lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
“A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Sixthly, with or without her consent, when she is under sixteen years of age.”
“(1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than seven years.”
The issues as framed by the High Court of Gujarat are as follows:
1.Whether the trial Court committed any error in holding the accused guilty of the offense of kidnapping punishable under Section-366 of the IPC?
2.whether the trial court committed any error in acquitting the accused of the offense of rape punishable under Sections-376 of the IPC?
The prosecution listed out the facts and events as they occurred and submitted documentary and oral evidence to the trial court, in the course of the trial. The documentary included documents to prove that she was a minor at the time of the crime was committed and that she was abducted and forcefully violated.
The accused pleaded not guilty to all charges the trial court framed against him.
The Court looking into the medical examination of the victim noted that the two-finger test was administrated to the victim. In the test, two fingers are inserted inside the victim’s vagina to determine the laxity of the vaginal muscles and the condition of the hymen. In the instance of the fingers gliding in, it is presumed that the victim was sexually active while the opposite indicates that she is a virgin.
It has been noted that the two-finger test can lead to a medical opinion regarding the victim’s past sexual history, resulting in a situation where the same can result in a presumption of consent on the victim’s part, thus causing prejudice to her testimony. This is in spite of Section 146 of the Indian Evidence Act 1872 dealing with questions lawful in cross-examination. Section 146 (3) states that in cases of rape or attempt to rape, no questions can be asked to the witness in cross-examination regarding the general immoral character of the victim.
The test is an unscientific method of medical examination used for sexual assault survivors and does not have any forensic value. The two-finger test is unconstitutional and violates the victim’s right to privacy, dignity, mental and physical integrity. The state has an obligation to make available to survivors of sexual violence services that do not traumatize them or violate their physical or mental integrity and dignity and respects the victim’s right to consent.
The Court stated that even though the overall evidence can give an impression that the victim was a consenting party, the fact still remains that she was a minor at the time. As the victim is a minor, the accused cannot take the defense that the victim had given her consent. Further, the court stated that it found no good ground to reject the victim’s testimony that she was subjected to non-consensual sexual intercourse by the accused, considering the stigma associated with sexual violence.
The ingredients of Section 363 and 366 of the IPC are made out as seen in Section 361 of the IPC. The Section aims to protect minors from being seduced for improper purposes. To attract the provisions of Section 361, the guardian’s consent is considered and not that of the minor.
The court found the accused guilty of the offense of rape, punishable under Section 376 and of the offense of kidnapping punishable under Section 366 of the IPC.
Even though the two-finger test was banned in India in 2014, the judgment was a stark reminder of the fact that the test is still in use in various parts of the country. This is despite the various instructions issued by the Government of India with this regard showing that in India, it is not the lack of legislation but rather an improper implementation that poses an obstacle.
The Lahore High Court in Pakistan, where the two-finger test is not banned, held in a recent judgment that the test violates the rights stated in the Constitution of Pakistan. Referring to the Gujarat High Court and Allahabad’s judgment on the same, the court directed the federal and provincial governments in Pakistan to make the test illegal and is not used further in medico-legal examinations.
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