Himachal Pradesh High Court: The Division Bench of Tarlok Singh Chauhan and Satyen Vaidya, JJ., during the course of hearing, in the present appeal, noticed that the Civil Hospital, Palampur had issued medico legal certificate (‘MLC’), which was demeaning, self-incriminating and self-inculpatory to the child victim. Further, apart from this, the doctors issuing the MLC even conducted the ‘two-finger test’ on the child victim. The Court opined that what was worse was that the child victim had to suffer untold miseries, especially when confronted with the questions of the MLC, which were humiliating and self-incriminating. Further, those irresponsible medical professionals, who designed the proforma and who medically examined the child victim, could not be allowed to go scot-free, and the child victim essentially and legally needed to be compensated. Thus, the Court directed the respondents to pay Rs. 5 Lakhs as compensation to the child victim for the trauma, embarrassment, humiliation and harassment that was caused to her by the Doctors in the Civil Hospital Palampur.
In an instant case, the appellant was convicted under Sections 376 and 354 of the Penal Code, 1860, Sections 6 and 14(3) of the Protection of Children from Sexual Offences Act, 2012, and Sections 66E and 67B of the Information and Technology Act, 2000 by the Special Judge. However, during the course of hearing of the instant appeal, the Court noticed that the Civil Hospital, Palampur had issued MLC, which was demeaning, and to some extent, self-incriminating and self-inculpatory to the child victim and opined that the gross insensitivity shown by everyone, who had designed the MLC and its columns, could not go unnoticed.
The Court opined that ‘rape’ was not only a crime against an individual, but also a crime which destroyed the basic equilibrium of the social atmosphere. Rape lowers the woman’s dignity and also, mars the reputation. The rape victim grows up with a traumatic experience and an unforgettable shape haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The Court opined that “torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female.”
The Court opined that apart from demeaning, self-incriminating and self-inculpatory questions, the doctors issuing the MLC even conducted the ‘two-finger test’, which had been held as violative of right of rape survivors to privacy, physical and mental dignity in Lilu v. State of Haryana, (2013) 14 SCC 643, and Assessment of the Criminal Justice System in Response to Sexual Offences, In Re, (2020) 18 SCC 540.
The Court opined that the proforma designed by the Civil Hospital, Palampur was bad in law as it completely ignored Section 53A of the Evidence Act, 1872. Further, the proforma also violated the Guidelines and Protocols Medico-legal Care for Survivors/Victims of Sexual Violence (‘the Guidelines’), issued by the Ministry of Health and Family Welfare, Government of India. The Court after perusal of the Guidelines, opined that it was clear that the two-finger test, which as per the medical term was called ‘per vaginum examination’ had been strictly prohibited, and since, Government of Himachal Pradesh had adopted the Guidelines, thus, it was applicable to the health professionals throughout the State of Himachal Pradesh. The Court opined that in spite of all this, the minor victim in the present case had been subjected to ‘two finger test’, which had violated her privacy, physical and mental integrity and dignity apart from creating fear and trauma to the child victim.
The Court opined that what was worse was that the child victim had to suffer untold miseries, especially when confronted with the question of the MLC which were humiliating and self-incriminating. Further, those irresponsible medical professionals, who designed the proforma and who medically examined the child victim, could not be allowed to go scot-free and the child victim essentially and legally needed to be compensated.
The Court also called Secretary (Health) to the Government of Himachal Pradesh, to know the State’s stand, however, she was not in a position to justify the proforma issued by the Civil Hospital and withdrew the proforma with immediate effect, and also, stated that this was designed by some of the doctors of the Civil Hospital, Palampur alone and such MLC were not being issued anywhere in the State of Himachal Pradesh.
The Court opined that since two finger test was violative of the rape survivor’s right to privacy, physical and mental dignity, therefore, in the present case, the respondents were directed to pay Rs. 5 Lakhs as compensation to the child victim for the trauma, embarrassment, humiliation and harassment that was caused to her by the Doctors in the Civil Hospital Palampur, which should be paid by the State at the first instance, and thereafter, recovered from the erred medical professionals, after holding an inquiry. The Court stated that the inquiry should be held against all those doctors, who designed the proforma, medically examined the child victim and issued the MLC, and the mere fact that the doctors had retired would not come in the way of the State in fastening the financial liability on them.
The Court further directed all the health professionals of the State of Himachal Pradesh to strictly desist from undertaking two-finger test on the rape survivors, otherwise other action might be taken against them, and they should be held liable for being prosecuted and punished under the Contempt of Courts Act, 1971.
The matter would next be listed on 27-02-2024.
[Sachin Kumar v. State of Himachal Pradesh, 2024 SCC OnLine HP 84, Order dated 11-01-2024]
Advocates who appeared in this case:
For the Appellant: K. S. Banyal, Sr. Advocate with Uday Singh Banyal, Advocate
For the Respondent: I. N. Mehta, Sr. Addl. A.G. with Navlesh Verma, Sharmila Patial, Addl. A.G. and J. S. Guleria, Dy. A.G., M. Sudha, Secretary Health, Dr. Gopal, Director Health Services and Dr. Meenakshi, Medical Superintendent, Civil Hospital Palampur
