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We must stop using the two-finger test as a diagnostic tool. We discover that the two-finger test is frequently applied to young victims of sexual offences is upheld by the Madras High Court in the case of Rajivgandhi v. State (Criminal Appeal (MD) No. 354 of 2021) through a Division Bench of R. Subramanian and N. Sathish Kumar, JJ.

FACTS OF THE CASE

In this case, the accused received a life sentence for violating Sections 5(I) and 6(1) of the Protection of Children from Sexual Offenses Act, 2012, coupled with a punishment of Rs. 1,00,000 and a further fine of Rs. 20,000 for violating Section 363 of the Indian Penal Code.

When the victim, who was then 16 years old, enrolled in a two-month tailoring course, the accused, who had a tailoring business, became friends with her. In addition, the accused had seduced the girl and violated her sexually. Medical testing revealed that the accused had intimate sexual contact with the victim girl. The defendant denied committing the offence.

The Sessions Judge ruled that the prosecution had established the defendant’s guilt and that, in light of the defendant’s history of repeated sex acts with the victim girl, the defendant had committed the offence under Section 5(I) of the POCSO Act.

JUDGMENT

According to Section 363 of the Penal Code, 1860, removing a minor from the legal custody of a guardian who is under the age of 16 for a male minor or under 18 for a female minor or a person of unsound mind is considered kidnapping. In this case, the victim girl had left her residence by herself under the pretence of getting some worn-out clothing repaired. She had travelled with the suspect, was approximatively 24 hours later apprehended, and never made an attempt to flee his custody. The fundamental elements of the offence under Section 363 IPC were thus not established.

The Madras High Court came to the conclusion that the trial court was correct in finding that the accused had violated Sections 5(I) and 6(1) of the POCSO Act. The court further stated that although there was no doubt that the accused was married and that he could be held accountable for defrauding the victim girl of the prospect of marriage, the victim girl’s testimony would demonstrate that the two were having a love affair and that the accused had claimed he would die without seeing her. Therefore, the court determined that a minimum sentence of 20 years in jail would be sufficient.

The Court concluded the case by stating that we must stop using the two-finger test as a diagnostic tool. We discover that the two-finger test is frequently applied to young victims of sexual offences The State Government was ordered by the High Court to prohibit doctors from performing the two-finger test on victims of sexual offences. Given the foregoing, the criminal appeal was partially upheld.

Accordingly, the offence under Section 363 of the IPC conviction and sentence were completely overturned by the Court. The life sentence is reduced to 20 years of harsh imprisonment, but the conviction for the offences under Sections 5(l) and 6(1) of the POCSO Act is upheld. The default sentence of three months of simple imprisonment and a fine of Rs. 1,000,000 are confirmed.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

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