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Case: State of Jharkhand v. Shailendra Kumar Rai, 2022 SC 1441

Citation: Criminal Appeal No. 1441 of 2022

Date of the case: 31st October 2022

Bench :Hon’ ble Justice Dr. Chandrachud, Hon’ble Justice Ms. Kohli.

Sections involved: IPC Sections – 300, 302, 307,375,376,448. CrPC sections – 173,174, Indian Evidence Act sections- 32(1), 60. Constitution of India – Article 136.

Appellant: The State of Jharkhand 

Respondent: Shalendra Kumar Rai

Facts of the case:

On 7 November 2004, the replier transgressed into the house of the victim which was positioned in Narangi vill. The replier pushed the victim on ground and committed rape. He hovered to kill her if she made noise. The victim cried for help which had adverse goods. The replier poured kerosene on her and set her on fire with a single matchstick. Hearing the noise, the victim’s family came to help and tried to extinguish her from the fire. They took her to the sanitarium named Sadar Hospital at Deoghar and made the following findings: 

1.The departed sustained burn in bone, pubic region and frontal area of her crown

In the pubic region of the departed no foreign hair was set up.

2. Vaginal examination two fritters were admitted fluently. 

3.Victim had 14 upper and lower teeth which were deficient.

4.Grounded on this, the medical board was of the opinion that the deceased was 16 years of age and no definite opinion can be given regarding sexual intercourse.

The Police officer got information regarding this incident. There was an immediate action taken against this case by the police officer. Victim’s statement was recorded and an FIR was filed against the respondent. A charge sheet was submitted under section 173 of Code of Criminal Procedure for offences under section 307, 341,376 and 448 of IPC after the completion of investigation and after the death of victim supplementary charge-sheet was filed under section 302 of IPC against the respondent. The victim died on 14 December 2004.

The case went for Session trial and pronounced its judgement on 10 October 2006 and convicted the respondent. The respondent was sentenced for rigorous life imprisonment . The respondent made an appeal to the High Court . The High Court acquitted the respondent and set aside the judgment given by the Session Court. After the acknowledgement , the victim appealed to the Supreme Court under Article 136 of the Constitution to challenge the decision given by the High Court.

Issues raised:

  • Whatever statements were given by the victim in front of the Police Officer whether they can be said as dying declaration under section 32(1) of Indian Evidence Act 1872? 
  • Whether there is a reasonable doubt made by the prosecution against the respondent for his acquisition?
  • Whether the two figures test proves that the victim was raped? 

Contentions

Appellant: The appellant stated that the High Court of The State of Jharkhand had not seen the evidence properly. It was stated that Dr. RK Pandey was looking after the patient which was conterminous to the deceased and wasn’t attending to the patient in the room conterminous to the one in which the departed was present. Here, the High Court had misknown. The post-mortem examination was conducted within 12 hours. The report stated that the victim’s death was septicaemia because of the sustained victim’s burn injuries.  

Respondent: The replier opposed cessions given by the appellant. The counsel on behalf of the respondent said that even if the dying declaration indicate that the complainant was raped, but the Medical Board’s Report stated that no applicable opinion can be given with this regard. There is no substantiation other than the dying declaration to prove that the deceased was reaped by the respondent. They further contended that the victim died in  a month after the crime took place and complained thereof. So therefore, the statement made by the victim can not be considered a dying declaration. 

Rationale:

  • Whatever statements were given by the victim in front of the Police Officer whether they can be said as dying declaration under section 32(1) of Indian Evidence Act 1872? 

Section 32 of the Indian Evidence Act: deals with the circumstances under which the statement of fact made by the deceased person is relevant.

Section 32(1): When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 

The Supreme Court pointed out the decision given by the High Court which took reference from the case Moti Singh v. State of Uttar Pradesh for admissibility of the statement of victim to be considered as dying declaration. The Supreme Court stated that the present case is different from the referred case. In this case, the post-mortem itself states that the cause of death of the victim was septicaemia. The remarks of the victim are relevant to cause her death. 

  • Whether the prosecution made a reasonable doubt against the respondent’s guilt about the accusations?

It is pretty evident that the respondent has sexually assaulted the victim before setting her on fire. The burn injuries have led to the death of the victim. 

The decision given by the High Court which reversed the decision given by the Session Court was inappropriate. On 14 December 2004, the victim died. The respondent was given rigorous life imprisonment by Session Court for the offence under section 302 of IPC and rigorous 10 years imprisonment for the offence under section 376 of IPC. Both the punishments should follow one another.

  • Whether the two fingers test proves that the victim was habituated to sexual intercourse? 

The Court has again and again deprecated the use of two fingers test in rape cases and cases related to sexual assault. As this test does not have any scientific basis and also it does not prove the rape allegations instead it traumatizes the victim. So it was held in the case of    Lillu v. State of Haryana, the two- Finger test violates the right to privacy, integrity and dignity.

Judgement:

It was held that the two fingers test violates the right of rape survivors to sequestration, physical and internal integrity and dignity. It also stated that the test is grounded on incorrect supposition that a sexually active woman cannot be ravished. Further it stated that the supportive value of a woman’s testimony does not depend on her sexual history. It is inappropriate to suggest that a woman cannot be trusted if she says that she has been raped if the test shows that she was sexually active. Supreme Court handed guidelines which are as follows : 

  • All the public and private hospitals should get the guidelines from the health ministry and family welfare.
  • Workshops and trainings should be provided for examining rape and sexual assault. 
  • Medical school curriculum should be reviewed to ensure that “two-fingers” test is not listed for examining sexual assault or rape survivors.
  • Copies should be sent to every state’s health department, secretary, ministry of health and Government of India.
  • It is the duty of every department’s main secretary to see whether these rules are being followed or not.

The Hon’ble Supreme Court held that the “two-Fingers” test be banned and whoever performed such test would be held guilty of misconduct. 

Inferences: 

The two-fingers test is a controversial method. It is used to check the virginity of the woman. It involves medical practitioners for this purpose. Various Human Rights organisations have criticised this test. The Hon’ble Supreme Court has held this test as unconstitutional because this test violates the right to privacy, physical and mental integrity and dignity of the victim. It also traumatises the victim which results in poor mental and physical condition of the victim. The Supreme Court should make severe punishments for those going against the guidelines. Another alternative should be introduced for examining the victim for rape and sexual assault.

References:

https://indiankanoon.org/doc/196199017/

Author

Shruti Deolalikar

P.E.S Modern Law College, Pune