CASE COMMENTARY
Appellant: State of Jharkhand
Respondent: Shailendra Kumar Rai
Court: Supreme Court of India
Criminal Appeal No. 1441 of 2022
Bench: Hon’ble Justice DY Chandrachud and Hon’ble Justice Hima Kohli
Date decided: 31st October 2022
FACTS OF THE CASE
The facts of this case were a dying declaration from the victim. The respondent raped the victim on the 7th of November, 2004 by entering her house in Narangi Village. He threatened to take her life if she cried for help, and set her ablaze with the help of a matchstick after pouring kerosene on her. Hearing her shout for help, her mother, her grandfather and a village resident rushed to her rescue, meanwhile, the respondent fled the scene of the crime. She was rushed to the Sadar Hospital, Deogarh where she was examined and treated. While examination, the two-finger test was conducted on her to check the possibility of her being subjected to rape.
During the two-finger test, it was discovered that the fingers were admitted easily, and no spermatozoa or foreign hair were found near the pubic region. The medical examiner testified that the possibility of sexual intercourse could not be ruled out completely.
Her statement was recorded due to her health deteriorating rapidly. A chargesheet was filed under sections 307[1], 341[2], 376[3], and 448[4] of the Indian Penal Code against the accused, and section 302[5] after the victim passed away on 14th December 2004. The accused was found guilty in the sessions court, and sentenced to imprisonment for life for the offense under section 302 of the Indian Penal Code, along with imprisonment for 10 years under section 376 of the Indian Penal Code.
The decision was then pled before the High Court, which overturned the judgement of the sessions court, and said that the declaration made by the deceased could not be considered a dying declaration under Section 32 (1)[6] of the Indian Evidence Act, and because the medical examination did not reveal any surety of the victim being raped. The Appellant then further appealed to the Supreme Court to challenge the decision given by the High Court.
ISSUES:
- Whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872, and;
- Whether the prosecution has proved the charges against the respondent beyond a reasonable doubt.
CONTENTIONS:
The appellant pleaded that the High Court was not able to understand two crucial facts- one, that Dr RK Pandey was attending to a patient on a table next to them, rather than a patient in the room adjacent to the room the deceased gave her dying declaration in, and two, that the post-mortem of the victim was conducted within twelve hours from the time of her death. Her cause of death was stated to be septicemia, blood poisoning caused by her burn injuries.
The respondent maintained that the report given by the medical board did not offer a sure and absolute judgement about the victim being raped or sexually assaulted. Her dying declaration was the only proof that the accused had raped the victim, and no other evidence was given or available. It was also argued that since the victim passed away a month after the alleged incident occurred, her statement cannot be considered a dying declaration.
RATIONALE:
- That the statement made by the victim was relevant and was to be treated as a dying declaration under section 32 (1) of the Indian Evidence Act[7]
The High Court overturned the judgement of the Sessions court since the medical report showed no absolute or solid signs of the deceased having been raped. The High Court referred to the judgement given in Moti Singh v State of Uttar Pradesh[8]; in this case, the accused allegedly shot the appellant. He was admitted to a hospital for treatment and was discharged from the hospital soon after. A few weeks later, however, the victim died and was cremated before a post-mortem could be done. Since the cause of death could not be ascertained, the court held the statement given by the victim could not be considered a dying declaration.
The Hon’ble Supreme Court held that relying on the judgement given in Moti Singh v State of Uttar Pradesh was wrong, because, in the case of State of Jharkhand v Shailendra Kumar Rai, the victim died due to septicemia, which was caused due to the burn marks she incurred due to the accused’s actions. The cause of death could be ascertained in this case, and therefore the same defence could not be used.
The Hon’ble apex court held that the statement given by the deceased could be admissible as a dying declaration under Section 32 (1) of the Indian Evidence Act. The Supreme Court also stated that although a Magistrate should ideally record a dying declaration, it cannot be said that dying declarations recorded by police officers are inadmissible because they were not in front of a magistrate, the court stated the cases of State of Karnataka v. Shariff[9] and Bhagirath v. State of Haryana[10]. In Khushal Rao v State of Bombay[11], the yardstick for dying declaration was decided.
- The Prosecution has proved its case against the respondent beyond reasonable doubt
The Hon’ble Supreme Court held that the declaration given by the deceased was proof enough that the offences stated in it happened to the victim, including the accused raping her and setting her ablaze with a matchstick and kerosene. She later succumbed to the injuries she sustained due to the accused setting her on fire. The judgement given in State of Uttar Pradesh v Ram Sagar Yadav[12] was relied upon by the Hon’ble Apex court, which stated that there is “neither a rule of law nor of prudence that a dying declaration cannot be acted upon unless corroborated.” The court held that the statement the deceased gave as a dying declaration was enough, as the medical reports did not contain enough information about whether the deceased was raped. In the case of Vishnu v State of Maharashtra[13], it was held that the opinion given by medical experts was only advisory and not conclusive or solid proof of the happening of an event.
The Supreme Court held that the High Court had given an erroneous judgement and the decision given by the Sessions Court was the same as the Hon’ble Supreme Court’s.
DEFECTS OF LAW:
In this case, the High Court made an erroneous judgement by relying on the decision given in the case of Moti Singh v State of Uttar Pradesh. It overturned the judgement given by the Sessions Court which gave rigorous imprisonment to the accused. Doing so delayed justice for the victim, as well as increased emotional and mental trauma as they had to appeal to the Supreme Court for a final verdict in this case. In the case of Moti Singh v State of Uttar Pradesh, the cause of death of the victim was not certain, and therefore could not be linked to the accused, and therefore his statement was not treated as a dying declaration. In the case of State of Jharkhand v Shailendra Kumar Rai however, the cause of death was septicemia, a blood infection caused by the burn injuries the accused had inflicted upon her.
The court heavily criticised the two-finger test conducted on rape and assault victims, as it re-traumatises them. The court has time and again objected to the two-finger test, as it relies on the sexual history of the victim, bringing forth the assumption that if the victim is sexually active, she cannot be raped. It has no scientific basis and is extremely regressive and patriarchal, feeding to the idea of judging the victim based on their character.
In the case of Lillu v State of Haryana[14], it was held that the two-finger test violates the basic rights of dignity, privacy and integrity. It was held that the victims of sexual assault and rape are entitled to legal recourses that do not enforce ideas such as a sexually active individual cannot be a victim in such cases.
It is irrelevant to say whether a woman is sexually active or habitual to it to determine whether she has been raped under section 375 of the Indian Penal Code, her sexual history is immaterial while judging whether the accused sexually assaulted or raped her.
INFERENCE:
The Hon’ble Supreme Court upheld the Sessions Court’s decision and overturned the High Court’s, mentioning how the High Court made an erroneous judgement and was unable to differentiate between the present case and Moti Singh v State of Uttar Pradesh. The Court also stated that a dying declaration could be made in front of police personnel, and it is not necessary for it to be given in front of a magistrate. The Apex Court also mentioned the regressive and patriarchal idea the two-finger test stood for and ruled that no victim should be subjected to this invasive and traumatizing test. The court directed the state and union governments to ensure that all public and private hospitals are informed about the Guidelines released by the Ministry of Health and Family Welfare. The Ministry stated that the per vaginum examination should not be conducted to establish rape or sexual violence, and a broken hymen does not signify that the woman cannot be raped. An intact hymen does not signify any sexual violence has been perpetrated, and similarly, a broken hymen does not prove previous sexual intercourse. The ministry also said that it should be treated like any other genital while documenting evidence, as the hymen can be broken while doing various activities such as cycling, riding or masturbation, and that only fresh tears and bleeding that may signify sexual violence should be documented as evidence.
Chehak Gandhi
Dr BR Ambedkar National Law University, Sonepat, Haryana
[1] Section 307, Indian Penal Code
[2] Section 341, Indian Penal Code
[3] Section 376, Indian Penal Code
[4] Section 448, Indian Penal Code
[5] Section 302, Indian Penal Code
[6] Section 32 (1) of the Indian Evidence Act
[7] Indian Evidence Act
[8] (1964) 1 SCR 688
[9] (2003) 2 SCC 473
[10] (1997) 1 SCC 481
[11] 1958 SCR 552
[12] 1985 AIR 416, 1985 SCR (2) 621
[13] 1994 AIR 2623, 1994 SCC (4) 602
[14] CRIMINAL APPEAL NO. 91 OF 2007