State of Jharkhand vs Shailendra Kumar Rai@ Pandav Rai

Abstract

This case relates to the two most heinous crimes, the first is rape and the other is murder. The victim in this case was raped and burnt by pouring kerosene on her body. Another significant issue involved was the controversial “two-finger test’’[1], which violates women’s right to privacy and has been denounced by courts in various judgements. Despite legal rulings against it, the test continues to be conducted in some instances. The analysis of the Apex Court’s judgement will shed light on these aspects of the case.[2]

Introduction

Rape is a crime against women and humanity. It is a type of sexual assault that involves sexual intercourse against a person without his/her consent. It is defined as an “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.” It is one of the most common crimes against women in India.

If the sexual intercourse has been done to a women under these circumstances i.e., against her will, devoid of her approval; with approval obtained under the duress of harm. Approval given because of a misunderstanding, thinking the man is her spouse; approval granted due to mental instability, being drunk, or influenced by a harmful substance. Involvement with a woman under eighteen, regardless of her agreement; or with a woman who cannot communicate her approval, it would be considered as ‘rape’ as outlined in Section 375 of the Indian Penal Code (IPC). [3]

Facts of the Case

The prosecution’s case unfolds as the accused entered the victim’s house in the afternoon on November 7, 2004, in Narangi village, the victim alleged that the respondent forcibly pushed to the ground, raped, and threatened with death if she raised an alarm. Despite the threat, she cried for help. The accused then reportedly doused her with kerosene and set her on fire using a matchstick. Responding to her cries, the victim’s mother, grandfather, and villagers arrived, extinguishing the flames, while the accused fled. Subsequently, the victim was taken to Sadar Hospital, Deoghar, for treatment, where a “Two Finger Test” was conducted to determine if she had been raped. The police station in charge recorded her statement, mirroring the aforementioned facts. Unfortunately, her condition deteriorated over time, and she succumbed to her injuries on December 14, 2004. Charges under sections 307, 302, 341, 376, and 448 of the IPC were levied against the accused.

The session court convicted the respondent for the stated offences under section 302 and 376 of the IPC, awarding rigorous imprisonment for life. Subsequently, the accused appealed to the high court, which overturned the conviction, asserting that the victim’s statement couldn’t be treated as a dying declaration under section 32(1). Additionally, the medical team found no evidence of rape. In pursuit of justice, the appellant approached the Supreme Court under Article 136 of the Indian Constitution to contest the High Court’s decision.

Issues Raised Before the Court

  1. Whether the statement made by the deceased before the Police Officer is relevant as a dying declaration under section 32(1) of the Indian Evidence Act 1872?[4]
  2. Whether the prosecution established its case against the respondent with sufficient certainty and without reasonable doubt?
  3. Has the “Two Finger Test” proved that the women were habitual to sex or not?

Arguments Advanced by the Parties

Appellant Side

This argument was submitted on behalf of the appellants that the High Court of Jharkhand had not appreciated the evidence correctly because it was stated that, “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 High Court misunderstood the case and the post-mortem examination of the deceased was conducted within 12 hours of the time of death. The report says that the cause of death was septicaemia due to the burn injuries sustained by her.

Respondent Side

The entries advocated in lieu of the appellant had been contrary to the respondent. The respondent counsel presented the following arguments, although the dying declaration indicated that the respondent had raped the deceased and the Medical Board’s report stated that no definite opinion could be given in this regard. There was no evidence other than the dying declaration to reveal that the respondent raped the deceased and that the victim died around a month after the occurrence of the incident complained of. Therefore, the statement made by the deceased to the Inquiry Officer was not a dying declaration.

Judgement

The appellant argued that the High Court misinterpreted two critical issues. First was that the post-mortem examination of the deceased occurred within 12 hours of the time of death, and second was that Dr. RK Pandey was attending to a patient on the table next to them, not in a room adjacent to where they were seated. Despite these arguments, the respondent asserted that the Medical Board’s report did not provide a solid judgment and the dying declaration was the sole evidence of the respondent raping the deceased. However, the High Court deemed the victim’s statement invalid due to the reason that dying statement was based on a previous ruling in the case of Moti Singh and Anr. v. State of Uttar Pradesh. The High Court’s reliance on this ruling was considered inappropriate, as the post-mortem report revealed that the victim died from septicaemia caused by her burn injuries, which makes the victim’s statement relevant to the events leading up to her death and the reason for her demise.

The post-mortem report confirmed that the respondent sexually assaulted the victim before setting her on fire, ultimately causing her death. Consequently, the dying declaration met the requirements of Section 32(1) and constituted a relevant fact. The prosecution established beyond a reasonable doubt that the respondent was guilty of the accusations. Despite the Sessions Court’s decision, the High Court erroneously acquitted the respondent. Nevertheless, the Supreme Court exercised its power to uphold the rule of law and overturned the decision to prevent a miscarriage of justice. The respondent was sentenced to life imprisonment under Section 302 and ten years of imprisonment under Section 376 of the IPC. These sentences were intended to be consecutive.

Defects of Law

The high court ignored the relevant facts of the case and pronounced an erroneous judgment which led the victim to the Supreme Court. The High Court misunderstood the fact that Dr. R. K. Pandey was present in the next room adjacent to the room of the victim while the police officer recorded the statement of the victim. However, the doctor was at that time seeing the patient at the next table adjacent to the victims in the same room, and in another instance, the High Court misinterpreted the case MOTI SINGH & ANOTHER’S VS. STATE OF UTTAR PRADESH[5] because in this case the victim was cremated before conducted the autopsy. So, the reason for death was unknown. However, in the present case, the reason for death was septicaemia. Therefore, this case is not relevant to the present case.

Inference

The judgment was delivered by the division bench of Justice DY Chandrachud and Justice Hima Kohli who were satisfied that the statement of the victim is admissible as a dying declaration and there was no need of any medical evidence to corroborate it as it was not otherwise suspicious. The respondents were unable to create a doubt as to the story of the prosecution and the case of the prosecution was established Beyond Reasonable Doubt.

Section 32(1) of the Indian Evidence Act, 1872 deals with the concept of dying declaration about which three issues were discussed, first although a dying declaration is ideally recorded by a magistrate but the dying declaration recorded by a police officer cannot be declared inadmissible.[6] Second the fact that dying declaration was not in the form of questions and answers doesn’t affect its probative value. Third the corroboration of dying declaration is not mandatory when it is not otherwise suspicious.

Section 60 of the Indian Evidence Act, 1872 states that the oral evidence must be direct.

Here, the statement of an unnamed doctor who was not called as a witness was given by another doctor. It was declared inadmissible and was treated as a hearsay.

Section 375 of the Indian Penal Code, 1860 deals with the concept of rape. The court stated that whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.

This case is clearly a big example where the Apex Court prevented the injustice that could have been done to the victim. The Court allowed the appeal and provided justice to the deceased who was raped and set on fire by the respondent. The guidelines about the sexiest “two-finger test” were remarkable and they banned one of the cruellest evil of the society.[7] The Court also directed the governments to review the curriculum in medical schools with a view to ensuring that the “two-finger test” is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape. This is the best step to provide guidance from the ground level about such evils. Thus, this case is a benchmark in the Indian legal history.

Aadhya Aeron

Lloyd Law College


[1]CAW & CW -CAW & CW, https://cawach.odisha.gov.in/wp-content/uploads/2022/12/two-finger-test.pdf (last visited Nov. 27, 2023).

[2] The state of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai on 31 …, https://indiankanoon.org/doc/196199017/ (last visited Nov 27, 2023).

[3] India Code: Section Details, India Code: Home, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424 (last visited Nov. 27, 2023).

[4] The Indian Evidence Act, 1872 (Act 1 of 1872).

[5] Moti Singh and another vs state of uttar pradesh on 23 January, 1963, https://indiankanoon.org/doc/1960263/ (last visited Nov 27, 2023).

[6] Ashok KM, Dying Declaration Does Not Become Inadmissible Merely Because Police Officer Recorded It : Supreme Court, Supreme Court News, Latest India Legal News, Supreme Court Updates, High Courts Updates, Judgments, Law Firms News, Law School News, Latest Legal News (Oct. 31, 2022), https://www.livelaw.in/top-stories/supreme-court-dying-declaration-police-officer-state-of-jharkhand-vs-shailendra-kumar-rai-pandav-rai-2022-livelaw-sc-890-212849.

[7] Sohini Chowdhury, Supreme Court Bans Two-Finger Test; Says It’s Based On Patriarchal Mindset That Sexually Active Woman Can’t Be Raped, Supreme Court News, Latest India Legal News, Supreme Court Updates, High Courts Updates, Judgments, Law Firms News, Law School News, Latest Legal News (Oct. 31, 2022), https://www.livelaw.in/top-stories/breaking-supreme-court-bans-two-finger-test-says-its-based-on-patriarchal-mindset-that-sexually-active-woman-cant-be-raped-212806.