Two-Finger Test On Rape Survivors Violates Privacy And Dignity: Gauhati HC

The Gauhati High Court has reaffirmed that subjecting sexual assault survivors to the 'two-finger test' constitutes professional misconduct and a gross violation of constitutional rights to privacy and dignity. Dismissing an appeal against a conviction for child rape, the Court slammed the continued use of the unscientific medical practice while holding that the testimony of a child victim, even if adopted by the perpetrator, remains a robust basis for conviction despite delays in reporting.

A bench of Justice Michael Zothankhuma and Justice Rajesh Mazumdar heard the appeal filed by a man convicted of raping his 13-year-old adopted daughter. The Court was confronted with a medical report where a doctor had conducted the 'two-finger test' and commented on the victim's hymen to determine habituation to sexual intercourse.

Invalidity of Two-Finger Test

The Court expressed its displeasure at the medical practitioner's reliance on the discredited 'two-finger test' during the examination of the victim. Referencing established precedents from the Supreme Court, the bench emphasized that such tests have no scientific basis and serve only to re-traumatize the survivor.

The Court, in its reasoning, 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 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."

Evaluation of Evidence and Extra-Judicial Confession

The Court noted that the appellant had admitted his guilt in a village meeting, which constitutes an extra-judicial confession. Although generally considered a weak piece of evidence, the Court found it reliable in this case as it was voluntary and corroborated by the victim's testimony and medical evidence. The Court found no reason to believe the appellant's defense that the case was a fabrication due to disciplinary issues regarding school attendance.

The Court has following directions:

"The appeal is accordingly dismissed. Send back the TCR. In appreciation of the assistance provided by the learned Amicus Curiae(s), their fees should be paid by the Gauhati High Court Legal Services Committee, as per norms."

Background:

The appellant was convicted under Section 6 of the POCSO Act and sentenced to 20 years of rigorous imprisonment for the repeated rape of his adopted daughter. The victim, aged 13 at the time, had been subjected to abuse since April 2022. The matter came to light when the victim disclosed the ordeal to a neighbor after being silenced by her foster mother.

During the trial, the victim was not initially named as a prosecution witness by the Investigating Officer, prompting the Trial Court to exercise its powers to call her as a Court Witness. The appellant argued that the FIR was delayed by five months and claimed the victim filed a false case after being disciplined. The High Court rejected these arguments, citing State of H.P. vs. Gian Chand ( "(2001) 6SCC 71": 2001 CaseBase(SC) 459) and Deepak Vs. State of Haryana ( "(2015) 4 SCC 762": 2015 CaseBase(SC) 247) to explain that delay is common when the perpetrator is a relative. The Court also relied on Pritinder Singh Vs. State of Punjab regarding the evidentiary value of extra-judicial confessions and Lillu alias Rajesh and another Vs. State of Haryana ( "(2013) 14 SCC 643": 2013 CaseBase(SC) 265) and State of Jharkhand Vs. Sainendra Kumar Rai regarding the prohibition of the two-finger test. The conviction was upheld.

Case Details:
Case No.: CRL.A(J)/145/2023
Case Title: Biren Nag v. The State of Assam
Appearances:
For the Petitioner(s): Ms. B. Sarma, Amicus Curiae.
For the Respondent(s): Ms. B. Bhuyan, APP, Assam; Ms. M. Barman, Amicus Curiae (R-2).

Source: 2026 CaseBase(GAU) 33