[Shakti Mills rape] Takes steps to shun unscientific two-finger test: Bombay High Court

The Bombay High Court on Thursday expressed hope that the Maharashtra government would take necessary steps to shun the “unscientific and heavily criticized two-finger test” which is conducted on rape survivors to ascertain if the hymen of the concerned person is intact or not (Mohammed Ashfaq Dawood Shaikh v. State of Maharashtra)..The Bench made these observations in the dismissal order of the appeal filed by one Mohammed Ashfaq Dawood Shaikh, convict in the 2013 Shakti mills case where an 19-year-old telephone reporter was raped..The Bench of Justices SS Jadhav and PK Chavan took note of the observations made by sessions judge regarding certain disturbing features in respect of medical examination of rape victim by doctors of JJ Hospital.The sessions judge had noted that the doctors had followed the “degrading and unscientific archaic two finger test in examination of prosecutrix” even though the Supreme court had condemned the same.The two-finger test is an intrusive physical examination where the doctor inserts two fingers inside the vagina of a rape survivor to check if the hymen has ruptured or not thereby indicating sexual assault/ intercourse.The Bench hoped that “State of Maharashtra would take necessary steps to shun all such unscientific and heavily criticized two finger tests”.The Bench also hoped that the guidelines and protocols which had been brought out by the government in 2013 would be strictly adhered to.A case, Nipun Saxena v. Union of India is also pending before the Supreme Court challenging the Constitutional validity of the two-finger test.In an order delivered in that case in December 2019, the top court had said that two-finger test' has been held to be of no consequence and violative of the dignity of woman in an earlier judgement in Lillu alias Rajesh and Anr. v. State of Haryana..In the present case before the Bombay High Court, Shaikh had been sentenced to life imprisonment after being convicted under Sections 377 (unnatural offence), 376D (gang rape), 354B (assault), 323 (voluntarily causing hurt) and 120B (conspiracy) along with 4 others by Mumbai Sessions Court.The order was challenged before the High Court in 2015..Shaikh argued that there had been an inordinate delay of one month in registering the first information report (FIR).It was further argued that Shaikh’s culpability has not been established by the prosecution.Shaikh’s lawyer advocate Anjali Patil, contended that Shaikh had initially been arraigned only as a suspect in the case, but he was arrested after much public outcry.The sketches of the accused came to be widely circulated by different newsrooms, and in view of such media coverage, the prosecution testimony was flawed.“The implication of the appellant in the present case is nothing but manifestation of the means to substantiate public outrage and also to compensate for the infirmities and crevices in investigation,” it was argued..Special Public Prosecutor DN Salvi supported the judgment of the Sessions court.He argued that the investigation of this case had been carried out so meticulously and in a professional manner leaving no room for disbelief of the testimony of the prosecutrix..The Bench observed from the evidence that there was no doubt that the prosecutrix has been subjected to the most humiliating, horrendous and embarrassing form of sexual assault by the five accused, that too, in the presence of her boyfriend whom she was to marry.“It is unfathomable to evaluate and experience the feelings of helplessness and worthlessness of a small girl who was in her late teens, could not resist such brutal assault which fact has already been substantiated through the experts of the medical field,” the order stated..As regards the delay in lodging of FIR, the Court deduced that since the prosecutrix and her boyfriend were threatened with dire consequences, it was not expected from a couple of such a lower strata to immediately approach the police.“In view of our tradition bound non permissive society where the reputation and honour of the family of a victim of sex assault is at stake, it is not expected that an immediate report would be lodged,” the Court observed..After considering the facts and evidence on record, the Court was of the firm opinion that the prosecution has proved its case beyond all reasonable doubts as regards the role played with other accused in complicity with other accused.Having observed that the Sessions Court judgment did not warrant interference in appeal, the Court proceeded to dismiss Shaikh’s appeal and upheld the Sessions Court..The same Bench had on Thursday commuted death sentence of three men convicted in another Shakti mills gang rape case to life imprisonment.The three men had been convicted of gang-raping a 23-year-old photo journalist in the Shakti mills area of Mumbai, and had been awarded death penalty by a Sessions Court on the ground they were repeat offenders..[Read Judgment]