Orissa High Court: In a jail criminal appeal against the Judgment of Assistant Sessions Judge, whereby the convict was held guilty of offence under Section 366 read with Section 376 of the Penal Code, 1860 (‘IPC’) and sentenced to undergo rigorous imprisonment for seven years, S.K. Sahoo, J. allowed the appeal and acquitted the convict of the said offences.
The Court also reiterated that medical professionals should desist from two- finger test in the private part of the victim while conducting medical examination on the victims of rape and sexual assault cases, as the test violates the right to privacy, physical and mental integrity and dignity and hence, not at all permissible under the law.
The father of the minor victim/ informant lodged a First Information Report (‘FIR’), stating that the minor victim (daughter) was missing and that she was kidnapped by the said convict. Upon completion of the inquiry, charges were framed by the Trial Court for offences under Sections 366-A read with Section 376 of the IPC. The Trial Court, vide the impugned Judgment found the convict guilt of offence under Section 366 read with Section 376 of the IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/- for the offence under Section 366 of the IPC and both the substantive sentences were directed to run concurrently. The Court acquitted him of offence under Section 366-A of the IPC, as the age of the minor victim on the date of incident was more than sixteen years and therefore, the ingredients of the offence under Section 366-A of the IPC were not attracted.
Analysis and Decision
The Court perused Section 366 of the IPC and said that the prosecution has to prove that the convict had kidnapped or abducted the minor victim and that such kidnapping or abduction was made with an intention that the victim might be compelled or knowing that she is likely to be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or that the convict knew that she would be likely to be forced or seduced to illicit intercourse. The Court also perused Section 361 of the IPC, which provides for ‘kidnapping from lawful guardianship’. The Court said that one of the vital ingredients of the Section 361 is ‘age’, it must be proved that the age of the minor victim was under eighteen years of age. For ‘abduction’ as defined under Section 362 of the IPC, the Court said that it must be proved that the convict had by force compelled or by any deceitful means has induced the minor victim to go from any place.
Regarding the minor victim’s age, the Court said that as per the school admission register, the victim date of birth was 12-07-1999, however, there was no birth certificate to support the said date of birth and the minor victim’s parents were also not sure of her date of birth. Hence the Court refused to accept 12-07-1999, as her date of birth. Upon perusing the doctor’s examination report, the Court found that the minor victim was more than sixteen years of age and less than seventeen. However, the Court said that the doctor’s opinion could not be relied upon as various other reports were missing.
The Court said that the minor victim’s statement that the convict had forcibly kidnapped her on his bicycle parked 200-300 meters away from the place of kidnapping and that he dragged her was unacceptable, as it would have drawn other attention. The Court added that the fact that the minor victim was sitting on the rear-carrier of the bicycle and did not attempt to escape and nor shouted to draw somebody’s attention clearly indicate that she was a consenting party and hence, it cannot be said that the convict induced her in any manner to leave the lawful guardianship. The Court also found that the minor victim had accepted the convict as her husband and had sexual intercourse with him voluntarily. The Court also said that the medical report corroborated this aspect, as the doctor had found wide gapping of the labia majora, her labia minora was exposed and there were old tears over the hymen, hence suggesting that the minor victim had frequent sexual intercourse with the convict.
Therefore, the Court acquitted the convict of the offences under Section 366 and 376 of the IPC and set aside the impugned judgment keeping in view the absence of clinching evidence establishing the victim’s age to be under eighteen years and that it seemed that she left her lawful guardianship on her own accord and voluntarily joined the convict.
Further, the Court noted that the vaginal opening administered two fingers easily, as per the doctor’s report. The Court reiterated that the medical professionals should desist from two- finger test in the private part of the victim while conducting medical examination on the victims of rape and sexual assault cases, as the test violates the right to privacy, physical, mental integrity and dignity, hence is not at all permissible under the law. The Court stated “that it is no less than adding an unforgettable insult to an unhealed injury”. The Court called the test as unscientific and traumatizing.
The Court also referred to Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to a presumption of consent.” The Court also referred to State of Jharkhand v. Shailendra Kumar Rai, 2022 SCC OnLine SC 1494, wherein it was ruled that any person who conducts ‘two-fingers test’ or ‘per vaginum examination’ in contravention of the directions of the Court shall be guilty of ‘misconduct’.
The Court noted that the said test in the present case was conducted by the doctor in 2011, and observed that however, it is not very infrequent to see such test being conducted by medical professionals in a routine manner while medically examining rape victims in most of the cases which is derogatory to the invaluable dignity of the victims.
[Satrughna Samal v. State of Odisha, 2023 SCC OnLine Ori 5654, 23-08-2023]
Judgment Authored by: Justice S.K. Sahoo
Advocates who appeared in this case :
For Convict: – Amicus Curiae Sobhan Panigrahi
For Respondent: – Additional Government Advocate Arupananda Das