2 Finger Test

STATE OF JHARKHAND V.
SHAILENDRA KUMAR RAI @ PANDEY RAI

(2022 SCC OnLine SC 1494)
Case NO. : Criminal Appeal 1441 of 2022
Jurisdiction: Criminal appellate, The Supreme court of India
Case filed on :
Case Decided on : 31 October 2022
Judges : Hon’ble CJI Dr. D.Y Chandrachud and Hon’ble Justice Hima Kohli
Legal Provision involved : Article 136 of Indian Constitution, Sec 302, 376, 341,448 of Indian
Penal Code.
INTRODUCTION
This case is famously known as ‘ Ban on two Finger Test’. Two finger test is a procedure in which
the medical practitioner insert two fingers into the vaginal of the women to check the flexibility
and well as to see if the hymen was ruptured. This test was performed the sexuality of the
women, in case where it is found that the hymen was ruptured it was concluded that the
women involved in any sexual activity. This test was banned in many countries as it humiliate
the women and also raise the question of her chastity but still it has been followed in our
countries and other countries like Nepal due to the conservative belief. Earlier to this case
many judges criticized such practice such as justice J.S Verma who headed the committee J.S
Verma, formed after the Nirbhaya case. In this case SC finally gave the decision to ban such type
of practice and issued certain guidelines for the same.
FACTS OF THE CASE
 This case was brought before the Supreme Court through appeal.
 In this case the respondent allegedly entered into the house of the victim now deceased
on the afternoon of of 7 Nov 2004.
 He forcefully pushed the victim down and raped her while threatening not to make any
noise. She did so he poured kerosene on her and set fire with a matchstick.
 She screamed and by hearing her voice her mother and grandfather ran to her and saw
her. They admitted to the nearby hospital of that area.
 Police on receiving information rushed to the hospital and lodged an FIR against the
respondent. During the investigation, medical examination of the victim was conducted
by inserting two fingers into the vaginal of the victim, doctor state that the deceased
may have involved in the sexual intercourse prior to the the date of the allege crime and
she was habitual to the sexual assault.
 Additional Session Judge, FTC II Deogarh convict him and sentence him to imprisonment
to life.
 When the matter reached to the H.C , H.C acquainted the respondent basically on two
reasons;
1. Family member was declared hostile witnessed
2. Statement made by the deceased is not admissible because of the decision of Moti
Singh vs State of U.P.
 The petitioner filed the appeal against the order of the H.C in the S.C under Art 136.
ISSUES RAISED IN THIS CASE
 Whether the statement of the deceased is relevant under Section 32 of IEA.

 Whether the prosecution proved the charged beyond reasonable doubt.
CONTENTION
Appellant
 The Doctor who did the test of the victim did not do the test the victim instead
attending the patient present in the adjacent room.
 The post mortem has been conducted within 12 hours of the death and the report
concluded that the victim dies because of burn injuries. So the statement made by her is
relevant under section 32 of IEA.
Respondent
 The statement made by the victim( dying declaration) indicates that the respondent had
committed the rape but the medical report does not indicate the same , no evidence has
been found in the examination.
 The statement given by the victim under section 32 is not relevant as she died after one
month of the statement.
JUDGMENT
 As to the dying declaration, the court held that the statement made by victim is
relevant under section 32 of the IEA as it relates to both the cause of death and
the circumstances of the transaction which related to the death.
 Further the court scolded the doctor for conducting such medical procedure and
order for the ban of two finger test and uphold the judgment of session judge.
 The court recommended that the two finger test has no scientific justification
and the evidence of this test does not support the offence of rape.
 Court issued certain guidelines for the ban and violation of this guidelines result
to misconduct.
1. Order the judgment should be reached to all the hospitals whether public or
private.
2. Workshops to be held for the medical professionals and told them how to
deal with the victims of sexual assault and the rape victims.
3. The judgment copy should to send to the min of the health and Govt of India
which shall further send to every states.
ANALYSIS
This case finally stopped the practice of two finger test. The decision given by the court is juat,
fair and reasonable. This is the landmark judgment. Many rape survivors are now are not
getting humiliated. Literally this practice breach the privacy of the women and and it raise the
question of her chastity. This is not the first case where the court held that the test should be
made unconstitutional. The demand has been made from the year 2013. Now this judgment
gave the new hopes in the mind of the victims.
CONCLUSION
It can be concluded that now the doctors are not allowed to check the rape victims by inserting
two fingers into the vaginal. If any doctors found to do this practice then he shall be punished
for the misconduct. The judgment given by the courts clearly show that such type of practice
does not have the Scientifics reasons and therefore it should be debarred.

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STATE OF JHARKHAND V.

SHAILENDRA KUMAR RAI @ PANDEY RAI

Case NO. : Criminal Appeal 1441 of 2022

Jurisdiction: Criminal appellate, The Supreme court of India

Case Decided on : 31 October 2022

FACTS OF THE CASE

ISSUES RAISED IN THIS CASE

 Whether the statement of the deceased is relevant under Section 32 of IEA.

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