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Gujarat High Court held that “Two finger test” is unconstitutional.

STATE OF GUJARAT  v.  RAMESHCHANDRA RAMABHAI PANCHAL R/CRIMINAL APPEAL NO. 122 of 1996  With R/CRIMINAL APPEAL NO. 25 of 1996- January 17, 2020.

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA

The ASJ, Ahmedabad convicted the accused of the offences punishable u/s 363 and 366 with fine. However this trial court acquitted him of S.376 of IPC on an assumption that on the date of the offence, the victim was major. However it also acknowledged its mistake, but declined to reverse the order stating that the order of acquittal was already pronounced. Thus this case reached the Honorable HC of Ahmedabad.

The issue before this court is whether the trial Court committed any error in holding the accused guilty of offence u/s 366 and acquitting the accused of offence u/s 376 of IPC?

The APP submitted that the Per-Vaginum examination i.e. the “two-finger test” is unconstitutional as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. The Maharashtra Government Resolution 2013 says that such a test is non-scientific which results in hurdles in the investigation and miscarriage of justice. Also the Planning Commission’s Working Group, in its report recommended abolition of this test and suggested to review CrPC to make procedure friendly to women and children.

After hearing the counsel of the parties the court observed that the overall evidence suggests that the victim was a consenting party. But the oral evidence of the victim suggests that the accused kidnapped her. The documentary evidence suggests that the victim was a minor when the offence was committed which the trial court misinterpreted. When this is the case the consent of victim is no defense. For deciding about S.363 and 366 IPC, S.361 of IPC was looked into by this court. Reference was made to

  1. State of Haryana v. Raja Ram (1973 (1) SCC 544)

  2. Reg v. Manketelow (6 Cox Criminal Cases 143)

  3. Thakorlal D. Vadgama v. The State of Gujarat (AIR 1973 SC 2313)

“Unfortunately, the trial Court realized its mistake in calculating the age of the victim at a very late stage. The trial Court had already pronounced the judgment of acquittal so far as the offence of rape is concerned. While the trial Court was hearing the accused and the prosecution at the point of sentence it realized that the victim was a minor. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned”.

This court decided that the accused should be guilty of the offence of rape u/s 376 IPC. Also the judgment of the trial court in holding the accused-appellant guilty of offence punishable u/s 366 IPC was affirmed by this court. Thus this court denied the conviction appeal preferred by the accused.

– PRIYADHARSHINI R

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