(Criminal appeal no. 1441 of 2022)
2022 SCC ONLINE SC 1494
FACTS
In the present case, the defendant allegedly went to the home of the deceased at Narangi village on the afternoon of the 7th November 2004. He allegedly pushed the victim to the ground and raped her, warning her that he would kill her if she raised an alarm. She then called for help and the defendant allegedly lit kerosene and burned her with a match stick. The victim’s grandfather, mother and a villager came to her room and the defendant allegedly fled when they saw them. The victim’s family and the villager put out the fire and the victim was taken to Sadar Hospital in Deoghar where she was treated for her injuries. where she was treated. During her treatment, she underwent a “Two Finger Test” to determine whether was either raped or not. The station responsible for the prosecution recorded her account, in which she was alleged to have been victimized stated the same facts as mentioned above. Over time, her condition deteriorated, and she died on December 14, 2004. The charges were filed against the defendant under IPC. The respondent was convicted by the session court for the offences under sections 302, 376 of IPC. The defendant was sentenced to life imprisonment. The defendant appealed the sentence to the high court. The High Court overturned the sentence of the session court and acquitted the defendant. The court held that the victim’s statement could not be regarded as a declaration of death pursuant to Article 32(1) of the Indian Constitution. The medical team did not find any evidence of rape. The appellant moved the Supreme Court for a review of the order of the session court.
ISSUES
- Whether the declaration made by the deceased to the Police Officer considered relevant as a statement made under section 32(1) of the Indian Evidence Act 1872?
- Whether the fact that a victim of rape has become accustomed to sexual intercourse impact the outcome of a case reported for rape?
- Whether the prosecution has proven its case against the respondent beyond a reasonable doubt?
CONTENTIONS MADE BY APPELLANT
The appellants argued that the Jharkhand High Court had incorrectly understood the evidence presented. They claimed that Dr. RK Pandey was actually treating a patient next to the deceased, not in a room next to the one where the deceased was located. This was a point the High Court had failed to grasp, leading to a misunderstanding. Additionally, the post-mortem examination of the deceased took place just 12 hours after her death, and the report determined that she died from septicemia as a result of her burn injuries.
CONTENTIONS MADE BY RESPONDENT
The appeals were made on behalf of the appellant, but the respondent’s legal team countered with the following arguments: even though the dying declaration suggested that the respondent had committed rape against the deceased, the report from the Medical Board could not provide a clear conclusion on this matter, and there was no additional proof beyond the dying declaration to confirm that the respondent had committed the rape, and that the victim passed away approximately a month after the incident was reported. Hence, the statement made by the deceased to the Intake Officer was not considered a dying declaration.
RATIONALE
The high court reversed the session court’s decision and allowed the acquittal of the accused as the medical team found no evidence of rape. Furthermore, the victim’s statement could not be qualified as the dying declaration to support his statement. The high court referred the case of Moti Singh & Another VS. State of Haryana to the referring court. In the present case, the victim was shot by the accused and sustained several injuries. The victim underwent treatment and was discharged. However, a few weeks later, the victim passed away and was cremated prior to the post-mortem. Consequently, the court ruled that there was no evidence regarding the victim’s cause of death. Therefore, the deceased’s statement cannot be qualified as a declaration of dying. The Supreme Court held that the High Court relied on the judgment of Moti Singh & Another VS. State of Haryana is misconceived as in the present case the cause of death is sustained, cause of death is declared by medical team as septicemia and how she got injuries is cleared by statement of victim to the police. The medical report of victim confirming the cause of death confirms the statement of victim. Therefore, the statement of victim is considered a dying declaration under section 32(1). Secondly, the Supreme Court held that there is no rule stating that the dying declaration recorded by the police is not admissible and that the form of the dying declaration as questions and answers does not affect the materiality and supporting value of the statement. The Supreme Court held that the deceased’s statement of dying made it clear that he was raped and then the accused poured kerosene on him and set him on fire resulting in several injuries and then he died after a month. Therefore, there is no evidence to question the materiality of his statement. The Supreme Court referred to the case of State of Uttar Pradesh vs. Ram Sagar Yadav . In this case, the Court held that there is no rule of law or a rule of judgment which states that a statement of dying cannot be acted upon on its own unless it is confirmed by evidence. The Court further stated that the lack of medical evidence did not prove that the victim wasn’t raped and the dying statement of the deceased made it clear that the accused had raped him and then set him on fire.
In the present case, during the victim’s examination, a “Two finger Test “was carried out on the victim to determine whether or not she was “habituated” to sexual intercourse. At that time, the Supreme Court ruled that this test has no scientific value, cannot prove or disprove a charge of rape, and that it is a violation of the rights of the victim to privacy, integrity and dignity. In order to determine whether the victim was a victim of rape or not, the fact of whether or not the victim was a habituated sexual partner is irrelevant. The Supreme Court has issued directions to the Union Government and the state governments to ensure that the guidelines issued by the ministry of health and family welfare are communicated to all the government and private hospitals, workshops are held for doctors to teach them the correct procedure while treating the victim of rape, the curriculum of medical students is reviewed to ensure that “The Two Finger Test” or “Per vaginum examination” is not used as a procedure to treat the victim of rape and a copy of this judgment is sent to all the secretaries, MOHFW, Government of India, the Secretary and MOHFW will send a copy to all the public health departments of each state. The Supreme Court has prohibited this test and said that anyone who performs this test is guilty of misconduct.
DEFECT IN LAW
The High Court failed to understand two essential points: first, the deceased post-mortem was carried out within 12 hours from the time of her death; and second, Dr R K Pandey was treating a patient sitting next to them on the table, not in the room adjacent to them. Despite these facts, the respondent claimed that the report of the Medical Board did not provide a solid verdict and that the statement of the deceased dying was the only evidence of the respondent raping the deceased. The High Court held that the victim’s statement was invalid as a statement of death on the basis of a previous judgment in the Moti Singh case and anr.v. state of Uttar Pradesh that the High Court erred in law by relying on the judgment of the Medical Board. The post mortem report showed that the deceased died of septicemia due to her burn injuries. Therefore, the statement of the victim is relevant to the circumstances leading up to the death and the cause of death.
INFERENCE
In its final statement, the court rejected the ‘two finger’ test as a method of determining rape a victim because it is a tool used to victim blame, degrade the victim and question the victim’s chastity. The two-finger test has been requested several times in India, including by the Verma committee formed under the former Chief Justice JS Verma who recommended the ‘banning’ of the two-finger test in the wake of the Nirbhaya incident. According to the Verma Committee, the laxity of a woman’s vagina, tested by the two-finger test, cannot be used to conclude that she cannot be raped as a sexually active woman. The Handbook on Sexual Harassment by the World Health Organization (WHO) also stated that there is no place for ‘virginity’ or ‘two fingers’ testing; it is not scientifically valid. In 2014 the Union Health Ministry released a set of guidelines called ‘Medico-Legal Care for Survivors/Victims of Sexual Violence’. The guidelines stated that: The size of vaginal opening doesn’t tell you anything about sexual violence case. Prevaginal exam can only be done on adult women if medically required.
A medical examination is essential for a forensic investigation, but it doesn’t prove rape because rape depends on consent from all parties, except for minors where consent doesn’t matter. The established jurisprudence says that medical evidence only serves as supporting evidence because it can only prove that sexual intercourse took place, whereas determining if an act is rape, is a legal matter. Since the guidelines were not legally binding and any act that violated them did not attract criminal prosecution, they were ignored time and time again. It was high time that the apex court made an order regarding this test because not only is it highly violative but it also sets our nation’s laws very wrong to allow such immoral practice to continue.