The Madurai bench of the Madras High Court directed the State Government to immediately ban the practice of the two-finger test on victims of sexual offences.
A bench of Justices R Subramanian and N Satish Kumar observed that the test is being conducted in cases which involves sexual offences, particularly on minor victims which clearly violates the Supreme Court judgement in Lillu @ Rajesh and another vs. State of Haryana case, which held that the test violates the rape survivors’ right to privacy and mental integrity and dignity.
“In view of the above judicial pronouncements, we have no doubt that the two finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith.”
An appeal was filed under Section 374(2) CrPC against an order of conviction and sentence under the POCSO Act. The accused, Rajivgandhi, who was running a tailoring shop in Perambur had managed to lure a 16-year-old girl into friendship when she went for tailoring training.
Few days later, the accused asked the victim to meet him near her house. She managed to meet the accused under the pretext of getting some old clothes stitched. Her father lodged a police complaint, when the girl did not return, the police found the girl, and took her to the hospital where it was found that the accused had penetrative sexual intercourse with the minor girl.
The accused had been convicted for life sentence which would be till the end of the life time for the offences under Section 5(1) read with Section 6(1) of the POCSO Act with a fine of Rs. 1,00,000/- .
Additional Public Prosecutor T Senthil Kumar submitted that the Supreme Court has disapproved of the practice of the two-finger test, and it was high time that the practice is stopped. The counsel appearing for the appellant also agreed with the prosecutor that the two-finger test has been held unconstitutional by various courts and several states have even banned it.
The court also noted that the offence of kidnapping under Section 363 IPC would not be justified as the girl had gone with the accused on her own and that it was a consensual relationship, regardless of her age, therefore, the accused should be acquitted of the aforesaid offence.
The Court noted that a minimum sentence of imprisonment for a period of 20 years would be sufficient for the accused.