Bench: Justice Hima Kohli and CJI D.Y.Chandrachud Case No.: Criminal Appeal No.1441 of 2022 Appellant: State of Jharkhand

Respondent: Shailendra Kumar Rai @ Pandav Rai

Appellant’s Advocate: Madhusmita Bora Court: Supreme Court of India Jurisdiction: Criminal appellate Judgment Date: 31 October, 2022

FACTS

• The prosecution claims that the respondent broke into the victim’s residence, rapped her, and set her on fire in Narangi village on the afternoon of 7 November 2004. This fire was put out by family and neighbours, and then she was admitted to Sadar Hospital Deoghar for treatment, followed by a “TWO FINGER TEST”.
• Primarily the respondent was charged with rape but later on murder charges was included after the victim’s death on 14 December 2004.
• The prosecution presented twelve witnesses, including Lallan Prasad, Dr. RK Pandey, Dr. Minu Mukherjee, Dr. R Mahto, and Suresh Yadav (investigating officers).
• The defence presented three witnesses, including Dhirendra Rai, who stated that the case was falsely launched due to a land dispute, Dasrath Tiwary and Balmukund Rai
• On 10 October 2006, The Sessions Court convicted the respondent based on the dying declaration, medical evidence and witness testimony. As a result, it aided the prosecution in proving its case beyond a reasonable doubt and convicting the defendant under sections 302, 341, 375, and 448 of the IPC based on the dying declaration.
• The High Court acquitted the respondent due to flaws in the dying statement, allegations of malpractice, and concerns about admissibility under Moti Singh v. State of Uttar Pradesh.
• The appellant filed an appeal with the Supreme Court, questioning the verdict of the High Court on witness credibility, medical evidence, and the legality of the dying declaration.

ISSUES RAISED

Based on the arguments received on behalf of the parties, two questions for resolution arise:

1. Whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872;3 and
   1. Whether the prosecution has proved the charges against the respondent beyond reasonable doubt.

CONTENTION

Appellants Arguments

Mr. Vishnu Sharma presented the appellant’s arguments. His arguments were as follows:

1. The High Court misappreciated the proof, arguing that Dr. RK Pandey was giving attention to a patient next to the deceased, not a patient in a room next to the one in which the victim was in attendance; and
2. The post-mortem examination of the deceased was performed within 12 hours of death. The cause of death, according to the post-mortem report, was septicemia caused by her burn injuries.

Respondents Argument

According to the respondent’s appearance, the dying declaration shows that the respondent raped the deceased. The medical board report said that no definitive opinion could be given in this regard. There is no evidence that the respondent raped the dead other than the dying declaration.

The incident took place on 7 November 2004 and the deceased died on 14 December 2004. The respondent also added the fact that the victim died almost a month after the incident complaint of the deceased to the IO is there for not a dying declaration.

RATIONALE

Based in the deceased’s account, the respondent drenched her in kerosene and let her burn in fire, resulting in burns to her body. Furthermore, the deceased report states that the respondent sexually assaulted her prior to lighting her on fire. As a result, the dying declaration satisfies

the criterion of section 32(1) i.e., According to the deceased statement the respondent doused her in kerosene and let her ablaze, causing her to suffer burn injuries. In addition, the deceased account reveals that the respondent sexually is assaulted her before setting her ablaze. As a result, the statement of the depth meets the requirement of ¹section 32(1) ,i,e. “When it relates to cause of death. — 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 persons 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.”, and constitute a relevant fact in and of it. To decide this appeal, it shall be teamed a dying declaration. and is a relevant fact in and of itself. This appeal will be decided in conjunction with a dying statement.

In addition, the Supreme court stated that it is clearly mentioned in the dying declaration that the respondent first raped the victim then with the help of kerosene set her on fire. This caused her burns on her body. Septicemia, brought on by the burn wounds ultimately caused her death. The file contains no information that would cast doubt on the respondent’s innocence.

The Supreme Court noted that the decision made by the session courts shouldn’t have been reserved by the High Court. Despite the fact that is quote frequently leaves acquittal decision issued by high court alone, it is within its power to use it power to uphold the role of law and reserve acquittal decisions if necessary to avoid a miscarriage of Justice. This authority is essential to guaranteeing the administration of justice and preventing unjust acquittals. The Supreme Court might carefully examine the matter and take into account all relevant factors by delaying the ruling, so averting any possible injustice.

The “two-finger test” was employed by the Medical Board to ascertain whether a victim had become accustomed to sexual activity. Due to its lack of scientific foundation and inability to confirm or refute rape accusations, this test has been abandoned in cases involving sexual assault and rape. Rather, it insults the dignity of women who may have experienced sexual assault by re-victimizing and traumatizing them. As a result, performing the “two-finger test” or pre-vaginal test is not advised.

This Court ruled in Lillu v. State of Haryana that the “two-finger test” breaches upon the rights to dignity, integrity, and privacy.

The assessment criteria for Section 375 of the Indian Penal Code does not take into account a woman’s history of sexual activity. The false assumption that a woman who is sexually active

1 Indian Evidence Act, 1872, § 32(1)

cannot be raped forms the basis of the test. The results of this test rely on the woman’s prior sexual activity and the reliability of her testimony. The test rejects a woman’s allegations of rape and is patriarchal and sexist.

Guidelines issued by the Supreme Court are:

• ensuring that the family welfare and health ministries’ policies are followed by all hospitals, both public and private.
• arranging training sessions to teach medical personnel or staff members the proper protocols to follow when assessing victims of sexual assault and rape.
• Verify that the “two finger test” or per vaginal examination is not listed among the techniques used to evaluate rape and sexual assault victims in the curriculum for medical schools.
• The secretary, the ministry of health, and the Indian government must all receive copies of the decision. Moreover, copies have to be sent to the health agency in every state.
• The chief secretaries of each department are in charge of ensuring that these guidelines are followed.

DEFECTS OF LAW

The law’s assumption that a woman’s sexual history determines rape is flawed, reinforcing gender stereotypes and cultural biases against women. It also fails to adequately protect survivors and offenders, as it places victims at the burden of evidence. However, a resource guidebook offers guidelines and tactics to combat these stereotypes in various settings, including the legal system. The aim is to disseminate knowledge and awareness, enabling people to identify and challenge prejudiced notions that perpetuate victimization and inequity, ultimately leading to a more just future.

INFERENCE

To the best of our knowledge, the Two Finger Test is supported by scientific evidence; rape allegations are not supported by this evidence. Since 2013, the Two Finger Test has been ruled repeatedly by the Supreme Court to be unlawful due to its violation of the privacy and dignity of victims of sexual assault. These kinds of exams worsen the effect that having already been the victim of rape has on their mental health. Since the victim of this exam experiences mental strain, we can ensure that it is sufficiently regulated or resolved by sensitizing and regulating it. We must absolutely ensure that no medical facility—public or private—will do this

examination. It is imperative that all law enforcement agencies and regulatory bodies ensure that their orders clearly specify that victims of sexual assault are not to be subjected to these exams. Furthermore, it is imperative that law enforcement officers and medical personnel receive thorough training on how to manage sexual assault cases with compassion and understanding in order to guarantee that victims receive the best possible treatment and respect at all times. Furthermore, it is imperative that law enforcement officers and medical personnel receive thorough training on how to manage sexual assault cases with compassion and understanding in order to guarantee that victims receive the best possible treatment and respect at all times.

Author, Aishwarya Ray ILS,Pune