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 of the case
- The Prosecution filed and appeal before the Supreme Court in order to overturn a man’s conviction and sentence for rape and murder of young girl in Jharkhand in November 2004.
- The incident was took placed in Narangi village where the victim alleged that the accused pushed her the ground and raped upon her and victim has been set on the fire by the accused after she shouted for the help and her grandfather, mother and villages residents came to her room and the accused was fled upon seeing upon them.
- The family members, along with neighbours, extinguished the fire. They hospitalised the girl at the Sadar Hospital Deoghar for treatment.
- The Station’s In-charge, PS Sarwa, recorded the victim’s statements after receiving the incident’s information.
- The girl was afterwards taken to a hospital in Deoghar, where she underwent the “TWO FINGER TEST”
- The Defendant was found guilty of crimes under section 302, 341, 376, and 448 of the Indian Penal Code by the Sessions Court on october 10, 2006 and was given a life term of solitary confinement.
- An appeal was made by the accused in the High Court of Jharkhand regarding the conviction by the Sessions Court.
- By their ruling on January 27, 2018, the High Court of Jharkhand nullified the Sessions Court’s decision and exonerated the respondent.
ISSUES
- Whether the deceased person’s statement complies with section 32(1) of the Indian Evidence Act of 1872.
- Whether the prosecution has proven the respondent’s guilt in connection with the charges beyond a reasonable doubt.
- Is two finger test concludes that the victim was habitual to sex and does it gives rise to the consent of rape victim.
CONTENTIONS
Based on a dying declaration and testimony of a doctor witness, the Sessions Court found the accused guilty. During cross-examination, Dr R.K. Pandey stated that he was attending to another patient in a room adjacent to the one where the treatment of the deceased was going on. It contradicted the previous testimony and led to the accused being acquitted by the Jharkhand High Court. Therefore, during the absence of a doctor, the dying declaration was written.
Argument by the appellant side
The appellant argues that septicemia caused the victim’s death while DR R.K. Pandey was diagnosing the patient next to the victim. The post mortem examination was also completed within 12 hours of the victim’s death.
Argument by the respondent side
The respondent’s arguments were that the medical report and the dying declaration were the only pieces of supporting documentation. The victim’s declaration before death does not prove that she was sexually assaulted. The victim passed away more than a month after the incident, thus the statement she made to the investigator was not a declaration of her death.
RATIONALE
- Whether the deceased person’s statement complies with section 32(1) of the Indian Evidence Act of 1872
Section 32 of the Indian Evidence Act of 1872 deals with circumstances in which a statement of significant fact made by a deceased person is relevant.
Section 32(1)when a person makes a declaration as to the cause of death or any of the facts of the transaction that resulted in his death, in cases where the cause of that person’s death is called into doubt. Such statements are meaningful whether or not the person who uttered them was expecting to die at the time they were made.
- The Supreme Court pointed out that the High Court relied on the decision Moti Singh v. State of Uttar Pradesh to hold that the victim’s statement was not admissible in the court as a dying declaration. The reliance on Moti Singh is inappropriate and irrelevant because, in this case, the post-mortem evidence reveals that the septicemia caused the victim’s death. Thus, in the present case, the victim’s remarks are undoubtedly relevant to her death and the circumstances that led to her death.
- Whether the prosecution has proven the respondent’s guilt in connection with the charges beyond a reasonable doubt.
The Supreme Court evaluated the appellant’s argument and reversed the high court’s verdict. The court noted that the dying declaration stated unequivocally that the respondent raped the victim and that the cause of death was septicemia caused by deep burn burns. As a result, the victim died as a result of the respondent’s injuries to her.
The bench stated that we could not interpret that no rape happened due to a lack of medical proof of rape. It was further substantiated by the case of Vishnu v. State of Maharashtra, where the court held that a medical expert’s opinion doesn’t conclude any facts. The Court further remarked that the witness frequently becomes hostile. Some of the reasons for the witnesses being hostile were mentioned in the case Ramesh v. State of Haryana.
- Is two finger test concludes that the victim was habitual to sex and does it gives rise to the consent of rape victim.
The “Two Finger Test” was declared unlawful by the court in Lilu@Rajesh Anr v. State of Haryana (2013). The right to privacy, bodily and mental integrity, and dignity of rape survivors are all violated. Therefore, there is no presumption of the rape victim’s consent based on the results of this test.
JUDGEMENT
The High Court of Jharkand’s ruling was overturned and the Session Court’s judgment was upheld after the prosecution was found to have proven its case beyond a reasonable doubt based on testimony and evidence.
The Supreme Court has recently issued recommendations about the “two finger test,” stating that there is no scientific justification for or evidence that this test can support rape charges.
Guidelines issued by the Supreme Court are:
- Ensuring that all public and private hospitals receive the guidelines created by the health ministry and family welfare.
- The holding of workshops for medical professionals or employees to explain the correct procedure to be taken when examining rape and sexual assault survivors.
- Review the medical school curriculum to make sure that the “two finger test” or per vaginum examination is not listed as one of the methods to be used when assessing rape and sexual assault survivors.
- The copy of the judgment must be given to the secretary, the ministry of health, and the government of India. Copies must also be sent to every state’s department of health.
- The responsibility for seeing that these rules are followed rests with each department’s main secretaries.
The Hon’ble Supreme Court banned the “two finger test” and said this test should be stopped or else any person performing such test will be held guilty of misconduct.
INFERENCE
As we know the Two Finger Test does not proves the allegation of rape and there is scientific proof of this test. The Supreme Court repeatedly ruled that the Two Finger Test is unconstitutional since 2013 as it violates the privacy and integrity of the rape victims. It affects their mental health as their already the victims of the rape and these type of tests affects their mental health. As this test creates mental pressure on the victim’s life we can ensure to control this or solve this problem properly by regulating it and sensitizing it. We should ensure that every medical hospital, government or private hospital, should not conduct this test. Every police department and executive bodies should ensure that the guidelines issued by the Supreme Court through this judgment should be followed strictly or else strict actions should be taken if that concern hospital does not follow these guidelines.
Author
Name : Prithviraj Patil
Dayanand College of Law, Latur