State of Jharkhand V. Shailendra Kumar Rai
Criminal Appeal No.1441 of 2022


In order to “test the flexibility of the vagina” and determine whether the hymen has ruptured, a medical practitioner will insert two fingers into the rape victim’s vagina. Rape victims are often diagnosed as “habituated to sex” based on the results of this test. The medical evidence of previous sexual relationships is used to contradict the charge of rape.

in order to suggest that the victim was lying, that the rape was not harmful, or that the victim is morally repugnant and should not be granted justice.


According to the Supreme Court’s decision in The State of Jharkhand versus Shailendra Kumar Rai, it is misconduct for anybody to subject a victim of sexual assault to a “two-finger test” or vaginal exam. In this case, the Jharkhand High Court’s ruling was overturned by Justices D.Y. Chandrachud and Hima Kohli in an order dated 31.11.2022, finding the respondent guilty of rape and murder under the Indian Penal Code (IPC). The Jharkhand High Court’s order to overturn the respondent’s conviction and life sentence under Sections 302, 376, 341, and 448 of the IPC was appealed.


The prosecution’s evidence states that the respondent allegedly broke into the victim’s and deceased’s Narangi village home in the afternoon of November 7, 2004. He allegedly pulled her down hard, sexually assaulted her, and threatened to hurt her if she made a sound. The respondent allegedly doused her in kerosene and lit her on fire with a matchstick when she cried out for assistance. Her mother, grandfather, and a villager heard her cries and came to her rescue. When the respondent saw them, he or she left the scene. After being brought to Sadar Hospital in Deoghar, the victim got medical care for her wounds there. After learning about the incident, the police recorded the victim’s statement on the same day. After PS Sarwna received FIR No. 163 of 2004, the inquiry got underway. Following the inquiry, the IO filed a charge sheet under IPC Sections 307, 341, 376, and 448. A supplementary charge sheet under Section 302 of the IPC was filed against the respondent after the victim passed away on December 14, 2004. The accused has refuted the allegations made against him.


  • Whether the Indian Evidence Act, 1872 will allow the victim’s last declaration to the police officer to be admitted
  • Whether The prosecution’s evidence has shown the respondent’s guilt of the charges beyond a reasonable doubt.
  • If a rape victim becomes “habituated with sex,” will it impact how a reported rape case is resolved? 


The appellant contended that there were two significant facts that the High Court misinterpreted: firstly, the deceased’s post-mortem examination was carried out within 12 hours of their death; and secondly, Dr. RK Pandey was treating a patient on the table beside them, not in a room next to their seating area. Despite these claims, the respondent insisted that the only evidence indicating the respondent had sexually assaulted the deceased was the dying declaration and that the Medical Board’s findings lacked a firm conclusion. Nevertheless, the High Court rejected the victim’s declaration because it was a dying wish, citing an earlier decision in the Moti Singh and Anr. V. State of Uttar Pradesh case. Since the post-mortem report established that the victim died from septicemia brought on by her burn injuries, the victim’s statement was relevant to the events leading up to her death and the reason why she died. The High Court’s reliance on this finding was ruled inappropriate.

The victim was sexually molested by the respondent before she was set on fire, which ultimately caused her death, according to the post-mortem report. Consequently, the final statement fulfilled Section 32(1)’s criteria and was considered a pertinent fact. The prosecution proved the respondent’s guilt of the charges beyond a reasonable doubt. The respondent was incorrectly acquitted by the High Court, notwithstanding the Sessions Court’s ruling. However, to prevent a miscarriage of justice, the Supreme Court exercised its authority to protect the rule of law and overturn the ruling. The respondent was given two sentences under the Indian Penal Code: ten years under Section 376 and life imprisonment under Section 302. The order of these sentences was meant to be sequential.


The “two fingers” test was outlawed because it was considered degrading, lacked scientific backing, and wasn’t really evidence in the traditional sense. 

Section 32 of the Indian Evidence Act, 1872 states that, even if the magistrate should ideally record a dying declaration made in front of the police, it wouldn’t be inadmissible for that reason alone. It will remain an accepted admission.

Section 375 of the Indian Evidence Act of 1872, When determining if a case meets the requirements of Section 375 of the Indian Penal Code (IPC), it is irrelevant whether the lady is accustomed to or habitually engages in sexual activity.


In their closing statement, the court once more criticised the “two-finger” test for identifying rape in victims, stating that it is an ineffective method that can be used to place blame on the victim, degrade them, and cast doubt on their chastity. The test has been requested numerous times in India. For example, the Verma Committee, which was established under the former Chief Justice of India, JS Verma, shortly after the Nirbhaya case recommended that the “two-finger” test be banned. The committee stated that the test’s measurement of vaginal laxity could not be used to determine whether or not a sexually active woman could not be raped. Additionally, according to a WHO handbook on sexual harassment, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”

A collection of policies and procedures known as “Medico-legal Care for survivors/victims of Sexual Violence” was released by the Union Health Ministry in 2014. These rules state that it is unacceptable to use the “two-finger test” to assess if someone has been the victim of sexual assault or rape. There is no pertinent information on sexual violence instances that can be gleaned from the size of the vaginal entrance. Adult women may only get per-vaginum examinations when deemed medically essential.

A medical examination is necessary for forensic investigations, but it is not conclusive evidence of rape because consent is required from all individuals involved, except for minors, in which case consent is not important. Since medical evidence may only verify the fact of sexual activity, it can only be used as supporting evidence within established legal doctrine. However, determining whether an act qualifies as rape is a matter of law.

The guidelines were not enforceable by law, and breaking them was not grounds for criminal prosecution. These were disregarded time and time again, and it was time for the Supreme Court to issue an order on the subject since, in addition to being a grave violation of the law, this test demonstrated how far our legal system had fallen in allowing such a depraved practice to continue.

Adv.Khanak Sharma (D\1710\2023)

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