Case Comment
Court: Supreme Court of India
Equivalent Citation: 2022 SCC Online SC 1494
Criminal Appeal: 1441 of 2022
Appellant: The State of Jharkhand
Respondent: Shailendra Kumar Rai @ Pandav Rai
Date of Judgment: 31st October, 2022
Bench: Dr D.Y Chandrachud and Hima Kohli
FACTS
According to the prosecution’s case, on the afternoon of November 7, 2004, the respondent allegedly entered the home of the victim and deceased in Narangi village. It is claimed that he forcefully pushed her down and raped her while threatening to harm her if she made any noise. When she screamed for help, the respondent purportedly poured kerosene on her and set her on fire with a matchstick. Her cries attracted her grandfather, mother, and a resident of the village, who rushed to her aid. The respondent then fled the scene upon seeing them. The victim was taken to Sadar Hospital in Deoghar, where she received medical attention for her injuries. The police received information about the incident and recorded the victim’s statement on the same day. FIR No. 163 of 2004 was registered at PS Sarwna, and the investigation began. After the investigation, the IO submitted a charge sheet under Sections 307, 341, 376, and 448 of the IPC. The victim later died on December 14, 2004, resulting in the submission of a supplementary charge sheet against the respondent under Section 302 of the IPC. The respondent has denied the charges against him.
ISSUES RAISED
- Whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872
- Whether the prosecution has proved the charges against the respondent beyond reasonable doubt.
CONTENTIONS
Appellant’s Arguments:
- The High Court has not appreciated the evidence correctly: Dr. RK Pandey was attending to a patient on the table adjacent to the deceased, and not to a patient in a room adjacent to the one in which the deceased was present
- The post-mortem examination of the deceased was conducted within 12 hours of the time of death. The post-mortem report concluded that the cause of death was septicemia due to the burn injuries sustained by her.
Respondent’s Arguments:
- Although the dying declaration indicates that the respondent raped the deceased, the Medical Board’s report stated that no definite opinion could be given in this regard. There is no evidence other than the dying declaration to show that the respondent raped the deceased
- The victim died around a month after the occurrence of the incident complained of. The statement made by the deceased to the IO is therefore not a dying declaration.
RATIONALE/ JUDGMENT
Whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872?
Dr. R Mahto prepared a post-mortem report which states that the cause of death of the victim was septicemia, which was a result of the burn injuries sustained by the victim. The High Court on basis of Supreme Court’s earlier ruling in Moti Singh and other v State of Uttar Pradeshreach the conclusion that the victim’s statement was inadmissible as a dying declaration. It was because during the cross-examination of Dr. R Mahto, he stated that another doctor referred to take the deceased to Bokaro Burn Hospital but this advice was ignored and the suggestion that death of victim could be prevented if the advice given was heeded became the basis for High Court to accept this argument and held that statement of deceased could not be treated as dying declaration.
The Supreme Court held that the High Court’s reliance on Moti Singh was misplaced as in that case the victim died before a post-mortem examination could be conducted and consequently his statement was not considered a statement as tot the cause of his death under Section 32(1) of Evidence Act. But in present case the post-mortem report establishes that the victim died as a result of septicemia caused by her burn injuries which satisfies the Clause (1) of Section 32 i.e., the cause of death as well as to the circumstances of the transaction which resulted in death. The statement of the deceased, therefore, satisfies the conditions in Section 32(1) and shall be considered to be a dying declaration for the purpose of adjudicating this appeal.
Whether the prosecution has proved its case against the respondent beyond reasonable doubt?
The dying declaration makes it abundantly clear that the respondent raped the deceased, poured kerosene on her, and set her on fire. The cause of death was septicemia, which occurred as a result of the burn injuries. Hence, the victim’s death was a direct result of the injuries inflicted upon her by the respondent. There is nothing on record which gives rise to reasonable doubt as to the respondent’s guilt.
The counsel for the respondent urged that Medical Board did not find any evidence for the commission of the rape and therefore not guilty of raping the deceased. But Supreme Court stated that a lack of medical evidence as to the commission of rape cannot be taken to mean that no rape was committed upon the deceased. Her dying declaration unequivocally states that the respondent raped her before setting her on fire and there is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious. The Supreme Court referred to Vishnu v. State of Maharashtra that a medical expert’s opinion is not conclusive as to the existence of any fact.
The prosecution has proved its case beyond reasonable doubt before the Sessions Court. Supreme Court therefore set aside the High Court’s decision dated and restore the Sessions Court’s judgment dated convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order sentencing the respondent to rigorous imprisonment for life for the offence punishable under Section 302 of the IPC and rigorous imprisonment for 10 years for the offence punishable under Section 376 of the IPC.
DEFECTS OF LAW
The High Court’s overturing the Session’s Courts judgment in this case led to the appeal made by appellant to the Apex Court. The High Court erroneously took in consideration of the fact that Dr. RK Pandey was attending to a patient in room adjacent to the one in which the deceased was present whereas he was attending to a patient on the table adjacent to the deceased. Also, The High Court mistook the reliance upon Moti Singh v. State of Uttar Pradesh while considering that the victim’s statement was inadmissible as a dying declaration. In this case the victim dies before a post-mortem examination could be conducted but in present it was conducted and cause of death is in relevance under sub clause (1) of Section 32 of Evidence Act. The High Court also misinterpret about dying declaration not been recorded by the magistrate. There is no rule to the effect that a dying declaration is admissible when it is recorded by a police officer instead of magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate, if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The High Court also based its claim on some prosecution witnesses being declared hostile during the proceedings in the Session Court. The Supreme Court defended it with reference to Ramesh v. State of Haryana that it is common for witnesses to turn hostile after the death of the victim for variety of reasons. So, certain witnesses including the family members of the deceased were declared hostile is insufficient to cast doubt upon the prosecution’s case. Most important fact of this case was that while examining the victim, the Medical Board conducted the “two-finger test” to determine whether she was habituated to sexual intercourse which has no-scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. Therefore, “two-finger test” or pre vaginum test must not be conducted.
INFERENCE
The Supreme Court overturned the ruling made High Court and upheld the earlier judgment of Sessions Court. The Supreme Court finally came to conclusion that veracity of dying declaration made by the victim is upheld and high court mistook and ignored some important facts related to tis case. Also, Apex Court upheld that the “two finger test” violates the rights of privacy, integrity and dignity of women. To ascertain whether the conditions of Section 375 of the IPC are met in a specific circumstance, it is irrelevant whether a woman is “habitually to sexual intercourse” or “habituated to sexual intercourse.” The alleged examination is predicated on the false belief that a woman who is actively engaged in sexual activity cannot be raped. Nothing could be further from the truth; when determining whether the accused committed rape, the victim’s sexual history is completely irrelevant. Additionally, a woman’s testimony’s probative value is independent of her sexual background. To imply that a woman cannot be trusted when she claims to have been raped simply because she engages in sexual activity is patriarchal and sexist. Any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this Court shall be guilty of misconduct.