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
Appellant’s Advocate: Madhusmita Bora
Court: Supreme Court of India
Judgment Date: 31 October 2022
Facts of the case
The fact of the case of the prosecution is that the respondent entered the house of the victim on 7 November 2004 in the afternoon, in Narangi village. The victim alleged that the respondent pushed her onto the ground and raped her and threatened to kill her if she shouted for her. However, she cried for help and then, the respondent splashed kerosene on her and set her on fire with the matchstick. On hearing her cries, her mother, grandfather, and villagers came to her and extinguished her fire in the meanwhile respondent fled from there upon seeing them. Then, the victim’s family took her to the Sadar Hospital, Deoghar, where she was treated, and during her treatment, a “Two Finger Test” was conducted on her to find out whether she was raped or not. The station in charge of the PS took her statement in which she narrated the same facts which are abovementioned. With time her condition was deteriorating, and she passed away on 14 December 2004. The charges under sections 307, 302, 341, 376, and 448 of the IPC were filed against the accused.
The session court convicted the respondent for the abovementioned offences under section 302, 376 of the IPC with rigorous imprisonment for life. Then, the respondent appealed to the high court and the High Court turned the conviction of the Session Court and acquitted the respondent, stating that the statement of the victim could not be considered as a dying declaration under section 32(1). Moreover, the medical team could not find any possibility of rape. Then, the appellant went to the Supreme Court for justice under Article 136 of the Indian Constitution to challenge the order of the High Court.
Issues of the Case
- Whether the statement made by the victim before the Police Officer is relevant as a dying declaration under section 32(1) of the Indian Evidence Act 1872?
- Whether the prosecution has proven its case against the respondent beyond a reasonable doubt?
- Has the “Two Finger Test” proved that the women were habitual to sex or not?
The Session Court convicted the respondent based on the Dying Declaration made by the victim. However, The High Court turned the order of the Session Court and acquitted the accused by stating that while recording the Dying Declaration of the victim, Dr. R.K. Pandey was not present in the same room, he was in another room, adjacent to the victim’s room and another reason was that the autopsy of the deceased was conducted within 24 hours of her death and it revealed that the victim was dead because of septicemia due to burn injuries sustained by her and there was no sign of rape in the medical report.
- the statement made by the victim before the Police Officer is relevant as a dying declaration under section 32(1) of the Indian Evidence Act 1872
The high court turned the decision of the session court and acquitted the accused by stating that the medical team did not find any possibility of rape. Moreover, the statement of the victim could not be considered as the Dying Declaration in support of his statement the high court referred a case MOTI SINGH & ANOTHER’s VS. STATE OF HARYANA, in this case, the accused shot the victim, and he got several injuries as result and underwent the treatment and got discharged. After a few weeks, he died, and he was cremated before the post –mortem could be conducted on him. So, the court held that there is no evidence related to the cause of death of the victim. So, the statement of the deceased could not be considered a dying declaration.
The Supreme Court stated that the reliance of the High Court on MOTI SINGH & ANOTHER’S VS. STATE OF HARYANA is misplaced because in the present case, the reason for death is sustained, the cause of death of the victim is septicemia, declared by the medical team and how she got the injuries is cleared by the statement of victim, made by her to the police. Therefore, the medical report of the victim stating the cause of death corroborates the statement of the victim. So, the statement made by the victim is considered a Dying Declaration under section 32 (1), and then, the Supreme Court further stated that there is no such rule that states that the dying declaration is recorded by the police instead of the Magistrate is not admissible and the dying declaration is not in the form of questions and answers do not affect its materiality and its supportive value.
- The prosecution has proven its case against the respondent beyond a reasonable doubt
The Supreme Court stated that it was cleared by the dying declaration of the deceased that she was raped and then, the accused splashed kerosene on her and set her on fire due to which she got several injuries and then, after a month she passed away. So, there is no such evidence that challenges the materiality of the dying declaration.to support his statement the Supreme Court referred to a case STATE OF UTTAR PRADESH VS. RAM SAGAR YADAV, in this case, the court held that there is neither a rule of law nor a rule of judgment that states that a dying declaration cannot be acted upon alone unless it is corroborated by an evidence.
Further, the Court states that lack of medical evidence does not show that the victim was not raped, and the dying declaration of the deceased clearly states that the accused raped her and then, set her on fire. In support of his statement, the Supreme Court relied on VISHNU VS. STATE OF MAHARASHTRA, in this case, the court held that the opinion of medical could not be considered conclusive to the existence of any fact and could be considered advisory. So, we find that the prosecution proved his case beyond a reasonable doubt before the session court and the high court overruled the judgment of the session court erroneously. Therefore, the Supreme Court convicted the accused as per the session’s court order.
3. The “Two Finger Test” proved that the women were habitual to sex or not
In this case, during the examination of the victim a test called “Two Finger Test “was conducted on the victim to check whether she was habituated to sexual intercourse or not. At this point, the Supreme Court stated that this test does not have any scientific value and it could not prove or disprove the charge of rape and it violates the right to privacy, integrity, and dignity of the victim. To decide whether the victim was raped or not, it is irrelevant fact whether the victim was habituated to sexual intercourse or not.
Further, The Supreme Court issued guidelines, directing the union government as well as state government to ensure that:
- The guidelines issued by the Ministry of Health and Family Welfare are communicated to all government and private hospitals.
- The holding of workshops for doctors to transmit them the right procedure while examining the victim of rape.
- Review the program of study of medical students to make sure that “The Two Finger Test” or per vaginum examination is not mentioned as a procedure to be used while examining the victim of rape.
- A copy of this judgment shall be circulated to all the Secretary, Ministry of Health and Family Welfare, Government of India.
- The Secretary and Ministry of Health and Family Welfare shall circulate the copies to all public health of each state.
Therefore, the Supreme Court banned this test and stated that if someone performs this test shall be guilty of misconduct.
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 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 septicemia. Therefore, this case is not relevant to the present case.
The Supreme Court turned the order of the high court and convicted the accused as per the order of the session court. The Supreme Court stated that the high court misunderstood the facts and pronounced the defective judgment. The Supreme Court pointed out that the dying declaration of the victim is enough to convict the accused and banned the test called the “Two Finger Test” and stated that this test has no scientific value as it is a violation of the right to privacy, integrity, and dignity of the victim and held that if someone will find to perform this test shall be held liable for the misconduct.
Author: Chelsi Antil
University: Chaudhary Charan Singh University
 The Indian Penal Code 1860, ss 307,302, 341, 448
 ibid, ss 302, 376
 Evidence Act 1872, s 31 (1)
 Constitution of India 1950, Article 136
 Moti Singh & Anoter’s vs. State of Haryana, AIR 1964 SC 900
 supra note 3
 State of Karnataka vs. Shariff (2003) 2 SCC 473
 Ram Bihari Yadav vs. State of Bihar, 1998 SC
 State of Uttar Pradesh vs. Ram Sagar Yadav, (1985)1 SCC 552
 Vishnu vs. State of Maharashtra, (2006) 1 SCC 283
 Supra note 5