[2022] 13 S.C.R. 1033

THE STATE OF JHARKHAND

SHAILENDRA KUMAR RAI @ PANDAV RAI

(Criminal Appeal No. 1441 of 2022)

OCTOBER 31, 2022

[DR. DHANANJAYA Y CHANDRACHUD AND

HIMA KOHLI, JJ.]

Evidence Act, 1872 - s.32(1) - Dying declaration - Penal Code, 1860 - ss.302,376,341 and 448 - Victim was raped and set on fire - Respondent was convicted u/ss. 302, 341, 376,448 by the Sessions Court onthebasis of dying declaration of the victim, and sentenced - Judgment set aside by High Court inter alia holding that the statement made by the deceased is not admissible as a dying declaration, respondent was acquitted - On appeal, held: Postmortem report concludes that the cause of death is septicemia caused by the burn injuries sustained by the victim - Statement of the victim satisfies the conditions laid down in s.32(1) as it relates to both, the cause of death as well as to the circumstances of the transaction which resulted in death - Her statement clearly described that the respondent poured kerosene on her and set her on fire - Statement of the deceased satisfies the conditions in s.32(1) and is itself a relevant fact -It is a dying declaration - Prosecution proved its case beyond reasonable doubt - Judgment of High Court set aside - Sessions Court's judgment convicting therespondent and the order sentencing him to rigorous imprisonment for life for the offence punishable u/s.302 and rigorous imprisonment for 10 years for the offence punishable u/s.376 is restored - Sentences to run concurrently- Evidence Act, 1872 -s.60.

Evidence Act, 1872 - s.32(1) - Dying declaration - Admissibility and probative value of -Held: There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious - Further, 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 issue of whether a dying

SUPREME COURT REPORTS


declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case- Also, the fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value - In the present case, the dying declaration was recorded in the victim's words and read out to her, after which she affixed her signature to it- Victim was in a competent state of mind when she made the statement- It was made voluntarily and is true.

Criminal Law - Evidence -Witnesses - Victim raped and set on fire - Family members of the victim-deceased and other persons known to her were declared hostile - Effect of, if any on prosecution's case - Factors responsible for witnesses turning hostile - Discussed.

Penal Code, 1860 - s.375 - Two finger test - Deprecation of - Directions issued to Union Government and the State Governments -Held: 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 Supreme Court shall be guilty of misconduct - Criminal Law (Amendment) Act 2013 - Evidence Act, 1872 - s.53A.

Allowing the appeal, the Court

HELD: 1.The statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872

a. The victim died due to the burn injuries sustained by her

The post-mortem report prepared by Dr. R Mahto (PW 8) states that the cause of death of the victim was septicemia, which was a result of the burn injuries sustained by the victim. The defence has sought to assail the veracity of this finding. In response to a question posed to him during cross-examination, Dr. R Mahto stated that he distinctly remembered that the doctor who was treating the deceased referred her to Bokaro Burn Hospital. However, she was not shifted to this hospital. The unnamed doctor who supposedly referred the deceased to Bokaro Burn Hospital was not named as a witness in the proceedings before the Sessions Judge and was not called to depose in evidence. Counsel appearing for respondent in the proceedings before the High Court argued that the fact that the deceased was

not shifted to Bokaro Burn Hospital was an intervening circumstance. He urged that consequently, it was not proved that the deceased died because of her burn injuries. The suggestion appears to be that the death of the victim could have been prevented if the advice supposedly given by the unnamed doctor (to shift her to Bokaro Burn Hospital) was heeded. As noted in the segment on the High Court's decision, the High Court accepted this argument and held that the statement of the deceased could not be treated as a dying declaration since the cause of death was not established. Dr. R Mahto's testimony (only to the limited extend that he seeks to testify as to the opinion of another doctor who supposedly referred the deceased to Bokaro Burn Hospital) is inadmissible in view of Section 60 of the Evidence Act. Here, the fact that an unnamed doctor referred the deceased to Bokaro Burn Hospital was sought to be established indirectly. The unnamed doctor's opinion as to the best course of treatment for the deceased was sought to be brought out through Dr. R Mahto's cross-examination. This is impermissible due to the interdict in Section 60 of the Evidence Act, in terms of which any oral evidence which refers to an opinion must be the evidence of the person who holds that opinion. His testimony (as to the limited point on whether the victim was referred to Bokaro Burn Hospital by another doctor) is therefore inadmissible and would amount to hearsay. However, his testimony in his examination-in-chief as well as his other answers during the cross-examination are not vitiated. His testimony refers to his own opinion and the grounds on which he holds it.

The remaining portion of his testimony, including on the cause of death of the victim, is no doubt admissible. Dr. R Mahto's testimony is clear that the cause of death is septicemia caused by the burn injuries sustained by the victim. In the present case, the post-mortem report establishes that the victim died as a result of septicemia caused by her burn injuries. Therefore, the statement of the victim in the present case is indeed a statement relevant as to the cause of her death and in regard to the circumstances which eventually resulted in her death. [Paras 32-

36][1050-D-G; 1051-C-D; 1052-B-D, G-H]

Moti Singh v. State of Uttar Pradesh; AIR 1964 SC 900 : [1964] SCR 688 - held inapplicable.

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI


b. The statement of the deceased relates to the cause of her death and the circumstances of the transaction which resulted in her death

Section 32 of the Evidence Act provides that in certain cases, statements by persons who cannot be called as witnesses (and are therefore unable to give direct evidence) are relevant.

Dying declarations are made relevant under sub-clause (1) of Section 32. In the present case, the statement satisfies the conditions laid down in subclause (1) of Section 32 as it relates to both, the cause of death as well as to the circumstances of the transaction which resulted in death. This is because the statement clearly described that the respondent poured kerosene on her and set her on fire. The post-mortem report concludes that the cause of death is septicemia caused by the burn injuries sustained by the deceased. The statement of the deceased indicates that she sustained the burn injuries as a result of the respondent having poured kerosene on her and setting her on fire. In addition, the statement of the deceased discloses that the respondent raped her before setting her on fire - this is a description of the circumstances of the transaction which resulted in her death. The statement of the deceased, therefore, satisfies the conditions in Section 32(1) and is itself a relevant fact. It shall be considered to be a dying declaration for the purpose of adjudicating this appeal. [Paras 37, 39 and 40][1053-B; 1054-B-E]

c. The admissibility and probative value of the dying declaration

There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a 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 issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case. In its judgment, the High Court incorrectly observed that in his crossexamination, Dr. RK Pandey stated that he was examining another patient in the adjacent room when the victim's dying declaration

was recorded. The record of the cross-examination indicates that Dr. RK Pandey stated that he was examining a patient on the adjacent table (not in the adjacent room as erroneously stated by the High Court). The High Court mistakenly relied on this fact to hold that the victim's statement could not be treated as her dying declaration. Dr. RK Pandey's answer to the question he was asked during cross-examination makes it clear that the dying declaration cannot be rejected on the ground that he was in another room when it was recorded - he was evidently in the same room and the dying declaration was recorded by Lallan Prasad in his presence. Both Lallan Prasad and Dr. RK Pandey have attested to this fact during their examination(s). Dr. RK Pandey was also satisfied that the deceased was physically and mentally fit to make a statement, and certified the same in writing.

The dying declaration was recorded in the victim's words and read out to her, after which she affixed her signature to it. There is no reason to believe that the statement was a result of tutoring or that the deceased was incapable of making a statement.

Nothing on the record indicates that there was any enmity between the deceased and the respondent, which would lead the deceased to narrate an untrue account of events and falsely implicate the respondent. Further, Lallan Prasad was unable to remember whether the deceased was admitted in the general ward or the ICU. This fact does not impeach the authenticity of the dying declaration because Dr. RK Pandey has testified that it was recorded in his presence. The dying declaration was made voluntarily and is true. The deceased was in a competent state of mind when she made a statement to Lallan Prasad. [Paras 41, 45-

48][1054-F-G; 1056-D-G; 1057-A-C]

Khushal Rao v. State of Bombay AIR 1958 SC 22 : [1958] SCR 552; Ram Bihari Yadav v. State of Bihar

(1998) 4 SCC 517 : [1998] 2 SCR 1097; Surinder Kumar v. State of Punjab (2012) 12 SCC 120 : [2012] 9 SCR 1019 - relied on.

2.1 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

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI


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. Learned counsel for the respondent has urged that the Medical Board did not find any evidence of rape and that the respondent is therefore not guilty of raping the deceased. The report prepared by the Medical Board stated that the possibility of intercourse could not be ruled out although no definite opinion could be given in this regard. 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. [Paras 49 and 50][1057-C-F]

Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : [2005] 5 Suppl. SCR 474; State of Uttar Pradesh v.

Ram Sagar Yadav, (1985) 1 SCC 552 : [1985] 2 SCR 621- relied on.

2.2 PW 1 - 5 and PW 10 (being the family members of the deceased and other persons known to her) were declared hostile during the proceedings in the Sessions Court. It is common for witnesses to turn hostile after the death of the victim (or even prior to it) for a variety of reasons. In addition to these factors, witnesses who know the deceased victim may turn hostile because they wish to move on with their lives. Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system. That certain witnesses including the family members of the deceased were declared hostile is insufficient to cast doubt upon the prosecution's case.

It was not the prosecution's case that the hostile witnesses were eye witnesses to the crime. Rather, these witnesses' testimonies were relevant mainly to show that the deceased consistently stated that the respondent raped and murdered her, to different persons.

The absence of evidence which establishes the consistency of the dying declaration over a period of time is not fatal to the prosecution's case. [Paras 53-55][1058-D-E; 1059-D-F]

2.3 The prosecution proved its case beyond reasonable doubt before the Sessions Court. The High Court ought not to have overturned the Sessions Court's judgment. While this Court does not ordinarily interfere with orders of acquittal passed by High Courts, it may exercise its power to do complete justice and reverse orders of acquittal to avert a miscarriage of justice.

The High Court's decision is set aside and restore the Sessions Court's judgment 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. These sentences are to run concurrently. The respondent shall be taken into custody to serve the sentence immediately. [Para 59][1060-E-G]

State of Karnataka v. Shariff (2003) 2 SCC 473 : [2003] 1 SCR 572; Bhagirath v. State of Haryana (1997) 1 SCC 481 : 1996 (9) JT 654; Ramesh v. State of Haryana, (2017) 1 SCC 529 : [2016] 8 SCR 936; Satbir

v. Surat Singh (1997) 4 SCC 192 : [1997] 2 SCR 1; State of Punjab v. Ajaib Singh (2005) 9 SCC 94 : 2004

(1) Suppl. JT 69; Lillu v. State of Haryana (2013) 14 SCC 643 - relied on.

Case Law Reference

[1964] SCR 688 held inapplicable Para 28(d)

[2003] 1 SCR 572 relied on Para 41

[1958] SCR 552 relied on Para 42

[1998] 2 SCR 1097 relied on Para 43

[2012] 9 SCR 1019 relied on Para 44

[2005] 5 Suppl. SCR 474 relied on Para 51

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI


[1985] 2 SCR 621 relied on Para 52

[2016] 8 SCR 936 relied on Para 53

[1997] 2 SCR 1 relied on Para 59

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1441 of 2022.

From the Judgment and Order dated 27.01.2018 of the High Court of Jharkhand at Ranchi in Criminal Appeal (D.B.) No.1533 of 2006.

Vishnu Sharma, Ms. Madhusmita Bora, Pawan Kishore Singh, Dipankar Singh, Ms. Anupama Sharma, Abhishek Verma, Advs. for the Appellant.

Braj Kishore Mishra, Bikram, Abhishek Yadav, Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

Table of Contents*

Background........................................................................4

An overview of the testimonies of the witnesses examined by the prosecution.......................................5

Lallan Prasad, PW 11..............................................5

Dr. RK Pandey, PW 6...............................................7

Dr. Minu Mukherjee, PW 9......................................7

Dr. R Mahto, PW 8.................................................9

Suresh Yadav, PW 12..............................................9

Rekha Dasgupta, PW 7..........................................10

Hostile witnesses...................................................10

ii.

An overview of the testimonies of the witnesses examined by the defence...........................................11

Dhirendra Rai, DW 1..............................................11

Dasrath Tiwary, DW 2...........................................11

Balmukund Rai, DW 3............................................11

*Ed. Note - Pagination in the Table of Contents is as per the Original Judgment.

iii. The decision of the Sessions Court...........................12

iv. The High Court's judgment on appeal......................14

Issues...............................................................................15

Submissions......................................................................16

Analysis............................................................................17

The statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872.........17

The victim died due to the burn injuries sustained by her.......................................................................17

The statement of the deceased relates to the cause of her death and the circumstances of the transaction which resulted in her death.....................................20

The admissibility and probative value of the dying declaration....................................................22

ii.

The prosecution has proved its case against the respondent beyond reasonable doubt.................26

Parting remarks...............................................................30

1. This appeal arises from the judgment of the High Court of Jharkhand dated 27 January 2018. The High Court allowed the appeal by the respondent and set aside the order of conviction and, consequently, of sentence passed by the Additional Sessions Judge, FTC-II Deoghar, on 10 October 2006 and 11 October 2006 respectively. The Sessions Judge had convicted the respondent for offences punishable under Sections 302, 376, 341 and 448 of the Indian Penal Code 18601 and sentenced him to suffer imprisonment for life.

A. Background

2. The case of the prosecution is that the respondent entered the house of the victim and deceased in Narangi village, on the afternoon of 7 November 2004. It is alleged that he pushed her to the ground and committed rape upon her, while threatening to kill her if she sounded an

1 "IPC"

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]


alarm. She called out for help, at which point the respondent allegedly poured kerosene on her and set her on fire with a matchstick. Her cries for help led to her grandfather, mother , and a resident of the village to come to her room. The respondent is alleged to have fled the scene upon seeing them.

3. The victim's family (along with the villager) extinguished the fire and took her to Sadar Hospital, Deoghar, where she was admitted and underwent treatment for the injuries sustained by her. The station in-charge at PS Sarwna, received information regarding the incident and travelled to Deoghar, where he recorded the victim's 'fard beyan' on the same day (i.e., 7 November 2004). In her statement, she narrated the incident as described in paragraph 2 above.

4. FIR No. 163 of 2004 was registered at PS Sarwna on the basis of the statement of the victim and the investigation commenced. Lallan Prasad was the IO and later, Suresh Yadav took over the investigation from him. Upon the completion of the investigation, the IO submitted a charge-sheet under Section 173 of the Code of Criminal Procedure 1973 for offences under Sections 307, 341, 376 and 448 of the IPC. The victim died on 14 December 2004, leading to the submission of a supplementary charge-sheet against the respondent, with reference to Section 302 of the IPC.

5. The respondent denied his guilt.

6. During the trial, the prosecution examined twelve witnesses in support of its case and the defence examined three witnesses. An overview of their testimonies in chiefand cross-examination as well as their status as witnesses follows.

An overview of the testimonies of the witnesses examined by the prosecution

Lallan Prasad, PW 11

7. Lallan Prasad, the station in-charge of Police Station Sarwna, deposed that he received information regarding the incident on 7 November 2004, upon which he travelled to Deoghar. He recorded the victim's statement at Sadar Hospital, Deoghar on the same day, in his own handwriting, and read the contents of her declaration to her. She affixed her signature to the declaration in his presence, and he signed

the declaration as well. Also in Lallan Prasad's presence, the grand father and mother of the victim and co-villager affixed their signatures to the declaration and Dr. RK Pandey certified that the victim was fit to make a statement and affixed his signature to the statement. Lallan Prasad stated that Dr. RK Pandey was present when he recorded the statement of the deceased.

8. Thereafter, he recorded the statements of Dr. RK Pandey, and other witnesses. A senior nurse, Rekha Dasgupta, produced the victim's undergarments; Lallan Prasad took them into custody and prepared a seizure list recording the same.

9. The IO stated that he examined the scene of the crime and found burnt clothes, an empty bottle of what seemed to be kerosene, and dust in the veranda, where the crime is said to have occurred. He observed that the wall and the floor had burn marks. He seized the burnt clothes and the empty bottle and prepared a seizure list. He also recorded the statements of various other witnesses.

10. In response to the questions posed to him during crossexamination, Lallan Prasad stated that he did not make a requisition to the CJM, Deoghar to record the statements of either the respondent or the deceased. Further, he did not request the doctor on duty at the time or the civil surgeon to record the victim's statement. He stated that he recorded her statement himself as her health was rapidly deteriorating.

11. He stated that he was unable to remember whether the victim was admitted in the Intensive Care Unit or the general ward, as well as the number of patients in the same ward. The IO testified that he did not find a matchbox, kerosene lamp, lantern, or any other material which could light a fire at the scene of the crime. He stated that he did not send the empty bottle which he had seized from the scene of the crime to a laboratory because he was transferred soon after he seized it.

Dr. RK Pandey, PW 6

12. Dr. RK Pandey, a Medical Officer at Sadar Hospital, testified that he examined the victim on 7 November 2004, when she was brought to the hospital to treat her burn injuries. He certified that the deceased was mentally and physically fit to make the statement. Dr. RK Pandey was examining a patient on the table adjacent to the deceased when the latter made her statement to Lallan Prasad.

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]


Dr. Minu Mukherjee, PW 9

13. Dr. Minu Mukherjee, a Medical Officer at Sadar Hospital, deposed that she was a member of the Medical Board constituted to examine the victim when she was undergoing treatment for her injuries.

She testified that the Medical Board examined the deceased on 7 November 2004 and made the following findings:

The deceased had sustained burns in her pubic region, breasts, and the frontal area of her scalp;

No foreign hair was found in the pubic region of the deceased;

A pathological report based on a vaginal smear revealed that there was no spermatozoa (living or dead) in the pubic region of the deceased;

A vaginal examination revealed that two fingers were admitted easily; and

The deceased had 14 upper and lower teeth, which were incomplete. The pubic symphysis was 40%. An X-ray of her wrist indicated that she was below 17 years.

14. Based on their examination and findings, the Medical Board was of the opinion that:

The deceased was about 16 years of age; and

The possibility of intercourse could not be ruled out although no definite opinion could be given in this regard.

The Medical Board's findings as well as its opinion was recorded in a report prepared by Dr. Minu Mukherjee. The other members of the Medical Board affixed their signatures to this report.

15. In response to the questions posed to her during crossexamination, Dr. Minu Mukherjee stated that mobile sperm can be spotted up to 72 hours after intercourse and non-mobile sperm can be spotted up to 7-10 days after intercourse. She further stated that the deceased may have engaged in intercourse prior to date of the alleged crime, and that the admission of two fingers in her vagina meant that she was habituated to sexual intercourse. She also denied the defence's suggestion that she prepared the medical report because higher ranking officials pressurized her to do so.

Dr. R Mahto, PW 8

16. Dr. R Mahto, the Deputy Superintendent at Sadar Hospital, testified that he conducted a post-mortem examination on the body of the deceased on 14 December 2004 and made the following findings:

The body had multiple ulcers scattered across it, with scabs on the head, face and chest. These injuries were caused by deep burns and were about six weeks old;

Various dissections revealed that the skull was intact, the brain matter was pale, the lungs were pale, the right chamber of the heart contained blood and the left chamber was empty, the stomach and the urinary bladder were empty.

The liver, the spleen and the kidneys were congested.

17. Based on his findings, Dr. R Mahto concluded that the victim's death was caused by septicemia, which was a result of the deep burn injuries sustained by the victim. He recorded his findings and opinion in a post-mortem report.

18. In response to the questions posed to him during crossexamination, he stated that those who suffer from septicemia may experience a change in their mental state, due to which they may be irritable and unresponsive upon being asked any questions. He also stated that the doctor who was treating the deceased referred her to the Bokaro Burn Hospital.

Suresh Yadav, PW 12

19. Suresh Yadav, a police officer at PS Sarwna, deposed that he took over the investigation of the case from Lallan Prasad on 18 November 2004. He submitted a charge-sheet under Section 173 of the CrPC for offences under Sections 307, 341, 376 and 448 of the IPC.

When he learnt that the victim died on 14 December 2004, he went to Sadar Hospital and prepared an inquest report under Section 174 of the CrPC. Thereafter, he received the post-mortem report and submitted a supplementary charge-sheet against the respondent, with reference to Section 302 of the IPC.

Rekha Dasgupta, PW 7

20. Rekha Dasgupta, a nurse at Sadar Hospital, was a witness to the seizure list prepared by Lallan Prasad when the undergarments of the deceased were seized.

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]


Hostile witnesses

21. The following witnesses initially supported the prosecution's case but were later declared hostile:

Parvati Devi, PW 1 (mother of the deceased);

Bibhuti Bushan Ray, PW 2 (grandfather of the deceased);

Mritunjay Ray, PW 3;

Sanjay Kumar, PW 4;

Sunil Kumar Roy, PW 5; and

Bal Krishna Ray, PW 10.

ii.

An overview of the testimonies of the witnesses examined by the defence

Dhirendra Rai, DW 1

22. Dhirendra Rai, a resident of Narangi village, deposed that a false case had been instituted against the respondent and that one Kashi Rai and the respondent had a disagreement concerning the irrigation of certain land. He testified that he entered the house of the deceased and saw that she was on fire but did not make an attempt to extinguish the flames. According to him, none of the family members of the deceased were present at the time.

23. In response to the questions posed to him during crossexamination, he stated that he had not made a statement to the police personnel who visited the village to investigate the crime.

Dasrath Tiwary, DW 2

24. Dasrath Tiwary, a resident of Narangi village, deposed that he saw the deceased after she had sustained the burns, and that she was not in a position to speak.

Balmukund Rai, DW 3

25. Balmukund Rai, a resident of Narangi village, testified that the deceased sustained burns as a result of an accident while she was cooking.

iii.

The decision of the Sessions Court

26. By its judgment dated 10 October 2006, the Sessions Court convicted the respondent of offences under Sections 302, 341, 376 and

448 of the IPC. By its order dated 11 October 2006, the Sessions Court sentenced 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. These sentences were directed to run concurrently. A separate sentence was not deemed to be required for the offences punishable under Sections 341 and 448 of the IPC.

27. The Sessions Court's conviction was based on its appreciation of the evidence on record as well as the position of the law, in the following terms:

The defence's averment that there was no certificate as to the mental fitness of the declarant / deceased at the time of recording the dying declaration was rejected because Dr.

RK Pandey had certified that the deceased was mentally fit to make a statement;

The argument of the defence that the family members of the deceased being declared hostile witnesses was fatal to the prosecution's case was not accepted because it was not the prosecution's case that the hostile witnesses were eye witnesses to the incident complained of. Instead, the hostile witnesses were sought to be examined to establish that the deceased told her family members that the accused raped her and set her on fire. The Sessions Court noted that the hostile witnesses may have been persuaded not to testify against the accused through bribes or because of threats to their life or property. This fact alone would not prove fatal to the prosecution's case;

There is no bar to a police officer recording a dying declaration;

PW 11's testimony that Dr. BK Pandey certified that the deceased was mentally and physically fit instead of Dr. RK Pandey (PW 6) was a typographical error. Hence, the defence's suggestion that a doctor named BK Pandey was on duty at Sadar Hospital and that he refused to certify that the deceased was physically and mentally fit to make a statement was rejected;

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]


Dr. RK Pandey's testimony that the deceased was in agony does not lead to the conclusion that she was not fully conscious while making a statement to the IO;

Dr. Minu Mukherjee's testimony that she did not find any signs of rape does not conclusively answer the question of whether the respondent raped the deceased. Opinions of medical officers will not discredit witnesses of fact; and

The fact that the bottle seized from the place of the crime was not sent for chemical analysis does not lead to the conclusion that the respondent did not pour kerosene on the deceased.

The Sessions Court concluded that the dying declaration was voluntary, credible, and did not suffer from any infirmities. It therefore held that the prosecution had proved its case beyond reasonable doubt, and convicted the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC on the basis of the dying declaration.

iv. The High Court's judgment on appeal

28. The respondent preferred an appeal before the High Court of Jharkhand. By its judgment dated 27 January 2018, the High Court set aside the judgment of the Sessions Court and acquitted the respondent, for the following reasons:

The family members of the deceased were declared to be hostile witnesses;

Dr. RK Pandey stated in his examination-in-chief that the dying declaration was recorded in his presence. However, he contradicted himself during the cross-examination, where he stated that he was with another patient in a room adjacent to the one in which the deceased was being treated.

Hence, the dying declaration was not recorded in his presence;

In response to a question posed to him during crossexamination, Dr. R Mahto stated that the victim's family had received advice that the victim ought to be taken to Bokaro Burn Hospital for better treatment but they did not do so;

The statement made by the deceased is not admissible as a dying declaration due to the decision in Moti Singh v. State of Uttar Pradesh;2 and

Dr. Minu Mukherjee (PW 9) did not find any sign of sexual intercourse when she examined the victim.

For these reasons, the High Court held that the prosecution had failed to prove the charges against the respondent beyond reasonable doubt. The appellant invoked the jurisdiction of this Court under Article 136 of the Constitution and challenged the decision of the High Court.

Notice was issued in these proceedings on 2 January 2019.

B. Issues

29. Based on the submissions which have been canvassed on behalf of the parties, two questions arise for determination:

Whether the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872;3 and

Whether the prosecution has proved the charges against the respondent beyond reasonable doubt.

C. Submissions

30. Mr. Vishnu Sharma led arguments on behalf of the appellant.

His submissions were:

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; and

The post-mortem examination of the deceased was conducted within 12 hours of the time of death. The postmortem report concluded that the cause of death was septicemia due to the burn injuries sustained by her.

31. The submissions urged on behalf of the appellant have been opposed by the respondent, whose counsel Mr. Braj Kishore Mishra made the following submissions:

2 AIR 1964 SC 900

3 "Evidence Act"

THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI

@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]


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; and

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.

D. Analysis

The statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872

The victim died due to the burn injuries sustained by her

32. The post-mortem report prepared by Dr. R Mahto (PW 8) states that the cause of death of the victim was septicemia, which was a result of the burn injuries sustained by the victim. The defence has sought to assail the veracity of this finding.

33. In response to a question posed to him during cross-examination, Dr. R Mahto stated that he distinctly remembered that the doctor who was treating the deceased referred her to Bokaro Burn Hospital. However, she was not shifted to this hospital. The unnamed doctor who supposedly referred the deceased to Bokaro Burn Hospital was not named as a witness in the proceedings before the Sessions Judge and was not called to depose in evidence. Counsel appearing for respondent in the proceedings before the High Court argued that the fact that the deceased was not shifted to Bokaro Burn Hospital was an intervening circumstance.

He urged that consequently, it was not proved that the deceased died because of her burn injuries. The suggestion appears to be that the death of the victim could have been prevented if the advice supposedly given by the unnamed doctor (to shift her to Bokaro Burn Hospital) was heeded.

As noted in the segment on the High Court's decision, the High Court accepted this argument and held that the statement of the deceased could not be treated as a dying declaration since the cause of death was not established.

34. Dr. R Mahto's statement that another doctor referred the deceased to Bokaro Burn Hospital is relied upon to urge that such a

reference did indeed take place, and that it was ignored. Counsel for the defence seeks to rely on Dr. R Mahto's testimony to establish that:

An unnamed doctor examined the deceased;

This doctor formed the opinion that the deceased ought to be treated at Bokaro Burn Hospital;

This doctor referred the deceased to Bokaro Burn Hospital;

The deceased and her family ignored this advice; and

The victim's death could have been prevented if she was treated at Bokaro Burn Hospital instead of Sadar Hospital.

Dr. R Mahto's testimony (only to the limited extend that he seeks to testify as to the opinion of another doctor who supposedly referred the deceased to Bokaro Burn Hospital) is inadmissible in view of Section 60 of the Evidence Act. Section 60 stipulates that oral evidence must be direct:

"Oral evidence must be direct. -- Oral evidence must, in all cases, whatever, be direct; that is to say --

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found; or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court

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may, if it thinks fit, require the production of such material thing for its inspection."

(emphasis supplied)

35. Here, the fact that an unnamed doctor referred the deceased to Bokaro Burn Hospital was sought to be established indirectly. The unnamed doctor's opinion as to the best course of treatment for the deceased was sought to be brought out through Dr. R Mahto's crossexamination. This is impermissible due to the interdict in Section 60 of the Evidence Act, in terms of which any oral evidence which refers to an opinion must be the evidence of the person who holds that opinion.

His testimony (as to the limited point on whether the victim was referred to Bokaro Burn Hospital by another doctor) is therefore inadmissible and would amount to hearsay. However, his testimony in his examinationin-chief as well as his other answers during the cross-examination are not vitiated. His testimony refers to his own opinion and the grounds on which he holds it. The remaining portion of his testimony, including on the cause of death of the victim, is no doubt admissible. Dr. R Mahto's testimony is clear that the cause of death is septicemia caused by the burn injuries sustained by the victim.

36. The High Court relied on this Court's decision in Moti Singh

(supra) to reach the conclusion that the victim's statement was inadmissible as a dying declaration. In that case, the accused was alleged to have shot the victim. The victim was admitted to the hospital, treated for his injuries, and discharged thereafter. He died a few weeks after having sustained the gunshot wounds and he was cremated before a post-mortem examination could be conducted. This Court held that there was no evidence on record as to the cause of death of the victim.

Consequently, his statement was not considered a statement as to the cause of his death or any of the circumstances of the transaction which resulted in his death, under Section 32(1) of the Evidence Act. The High Court's reliance on Moti Singh (supra) is misplaced because in the present case, the post-mortem report establishes that the victim died as a result of septicemia caused by her burn injuries. Therefore, the statement of the victim in the present case is indeed a statement relevant as to the cause of her death and in regard to the circumstances which eventually resulted in her death, as elaborated upon in the subsequent segment.

The statement of the deceased relates to the cause of her death and the circumstances of the transaction which resulted in her death

37. Section 32 of the Evidence Act provides that in certain cases, statements by persons who cannot be called as witnesses (and are therefore unable to give direct evidence) are relevant. Dying declarations are made relevant under sub-clause (1) of Section 32:

"Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: --

(1) 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 person's 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.

(emphasis supplied)

38. In terms of Section 32, statements (either written or verbal) of relevant facts are themselves relevant facts when they are made by the following classes of people:

a. a person who is dead;

b. a person who cannot be found;

c. a person who is incapable of giving evidence; or

d. a person whose attendance cannot be procured without an amount of delay or expense.

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Clause (1) indicates that in cases where the cause of a person's death comes into question, a statement made by that person is relevant when it relates to:

a. the cause of death; or

b. any of the circumstances of the transaction which resulted in death.

39. In the present case, the statement satisfies the conditions laid down in sub-clause (1) of Section 32 as it relates to both, the cause of death as well as to the circumstances of the transaction which resulted in death. This is because the statement clearly described that the respondent poured kerosene on her and set her on fire. The post-mortem report concludes that the cause of death is septicemia caused by the burn injuries sustained by the deceased. The statement of the deceased indicates that she sustained the burn injuries as a result of the respondent having poured kerosene on her and setting her on fire.

40. In addition, the statement of the deceased discloses that the respondent raped her before setting her on fire - this is a description of the circumstances of the transaction which resulted in her death. The statement of the deceased, therefore, satisfies the conditions in Section 32(1) and is itself a relevant fact. It shall be considered to be a dying declaration for the purpose of adjudicating this appeal.

The admissibility and probative value of the dying declaration

41. There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate.4 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 issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case.

42. In Khushal Rao v. State of Bombay,5 this Court formulated the yardstick against which dying declarations may be evaluated:

4 State of Karnataka v. Shariff (2003) 2 SCC 473; Bhagirath v. State of Haryana (1997)

1 SCC 481

5 AIR 1958 SC 22

"16. … (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and

(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

43. The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value, as held in Ram Bihari Yadav v. State of Bihar:6

"9. … Generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is

6 (1998) 4 SCC 517

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not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in questionanswer form cannot be a ground against its acceptability or reliability."

44. Indeed, as recognized by this Court in Surinder Kumar v.

State of Punjab7 it may not always be possible to record dying declarations in the form of questions and answers:

"19. Insofar as the case before us is concerned, we may only note that there is no format prescribed for recording a dying declaration. Indeed, no such format can be prescribed. Therefore, it is not obligatory that a dying declaration should be recorded in a question-answer form. There may be occasions when it is possible to do so and others when it may not be possible to do so either because of the prevailing situation or because of the pain and agony that the victim might be suffering at that point of time."

45. In its judgment, the High Court incorrectly observed that in his cross-examination, Dr. RK Pandey stated that he was examining another patient in the adjacent room when the victim's dying declaration was recorded. The record of the cross-examination indicates that Dr. RK Pandey stated that he was examining a patient on the adjacent table (not in the adjacent room as erroneously stated by the High Court). The High Court mistakenly relied on this fact to hold that the victim's statement could not be treated as her dying declaration. Dr. RK Pandey's answer to the question he was asked during cross-examination makes it clear that the dying declaration cannot be rejected on the ground that he was in another room when it was recorded - he was evidently in the same room and the dying declaration was recorded by Lallan Prasad in his presence. Both Lallan Prasad and Dr. RK Pandey have attested to this fact during their examination(s).

46. Dr. RK Pandey was also satisfied that the deceased was physically and mentally fit to make a statement, and certified the same in writing. The dying declaration was recorded in the victim's words and read out to her, after which she affixed her signature to it. We have no reason to believe that the statement was a result of tutoring or that the deceased was incapable of making a statement. Nothing on the record indicates that there was any enmity between the deceased and the

7 (2012) 12 SCC 120

respondent, which would lead the deceased to narrate an untrue account of events and falsely implicate the respondent.

47. Further, Lallan Prasad was unable to remember whether the deceased was admitted in the general ward or the ICU. This fact does not impeach the authenticity of the dying declaration because Dr. RK Pandey has testified that it was recorded in his presence.

48. We are therefore satisfied that the dying declaration was made voluntarily and is true. The deceased was in a competent state of mind when she made a statement to Lallan Prasad.

ii.

The prosecution has proved its case against the respondent beyond reasonable doubt

49. 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.

50. Learned counsel for the respondent has urged that the Medical Board did not find any evidence of rape and that the respondent is therefore not guilty of raping the deceased. The report prepared by the Medical Board stated that the possibility of intercourse could not be ruled out although no definite opinion could be given in this regard. 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.

51. In Vishnu v. State of Maharashtra,8 this Court held that a medical expert's opinion is not conclusive as to the existence of any fact:

"The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."

8 (2006) 1 SCC 283

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52. In State of Uttar Pradesh v. Ram Sagar Yadav,9 this Court held that there is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated:

"13. It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao v. State of Bombay [AIR 1958 SC 22 :1958 SCR 552 :1938 Cri LJ 106] ; Harbans Singh v. State of Punjab [AIR 1962 SC 439 : 1962 Supp (1) SCR 104 : (1962) 1 Cri LJ 479] ; Gopalsingh

v. State of M.P. [(1972) 3 SCC 268 : 1972 SCC (Cri) 513 : 1972 Cri LJ 1045] ) There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration."

53. PW 1 - 5 and PW 10 (being the family members of the deceased and other persons known to her) were declared hostile during the proceedings in the Sessions Court. It is common for witnesses to turn hostile after the death of the victim (or even prior to it) for a variety of reasons. In Ramesh v. State of Haryana,10 this Court noted some of the factors responsible for witnesses turning hostile:

"44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation and trial.

9 (1985) 1 SCC 552

10 (2017) 1 SCC 529

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as "culture of compromise". Commenting upon such culture in rape trials, Pratiksha Bakshi ["Justice is a Secret : Compromise in Rape Trials"

(2010) 44, Issue 3, Contributions to Indian Sociology, pp. 207- 233.] has highlighted this problem in the following manner:

"… The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live. …""

54. In addition to these factors, witnesses who know the deceased victim may turn hostile because they wish to move on with their lives.

Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system.

55. That certain witnesses including the family members of the deceased were declared hostile is insufficient to cast doubt upon the prosecution's case. It was not the prosecution's case that the hostile witnesses were eye witnesses to the crime. Rather, these witnesses' testimonies were relevant mainly to show that the deceased consistently stated that the respondent raped and murdered her, to different persons.

The absence of evidence which establishes the consistency of the dying declaration over a period of time is not fatal to the prosecution's case.

As noted previously, the dying declaration was recorded in the victim's words and read out to her, after which she affixed her signature on it.

56. Dhirendra Rai (DW 1) testified that a false case had been instituted against the respondent but failed to provide a convincing reason for his opinion. We are not persuaded that a small disagreement regarding the irrigation of land would prompt the deceased to falsify rape charges against the respondent or lie about his having set her on fire, especially when she was not party to the alleged disagreement about the irrigation of land.

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57. Dasrath Tiwary (DW 2) deposed that the deceased was unable to speak after she was burnt. This is patently false as established by the testimonies of both Lallan Prasad and Dr. RK Pandey. Dr. RK Pandey certified that the deceased was physically and mentally fit, and was present while her statement was recorded by Lallan Prasad. Dr. RK Pandey did not have any animus towards the respondent, nor has the defence suggested that he did. He had no reason to give false testimony regarding the victim's health, or to give a false certificate of fitness at the time her statement was recorded.

58. Balmukund Rai (DW 3) testified that the deceased was injured while cooking. We find this to be wholly unconvincing. Nothing emerges from the record which suggests that the deceased had any reason to concoct a story implicating the respondent. Further, nothing suggests that Balmukund Rai was present in the victim's home when the supposed accident took place. If he did witness the accident, it begs the question of where he went when Dhirendra Rai supposedly entered the victim's house. The dying declaration has greater probative value than Balmukund Rai's testimony and we are inclined to accept the version of events narrated in the former.

59. For these reasons, we find that the prosecution proved its case beyond reasonable doubt before the Sessions Court. The High Court ought not to have overturned the Sessions Court's judgment for the reasons discussed previously. While this Court does not ordinarily interfere with orders of acquittal passed by High Courts, it may exercise its power to do complete justice and reverse orders of acquittal to avert a miscarriage of justice.11 We therefore set aside the High Court's decision dated 27 January 2018 and restore the Sessions Court's judgment dated 10 October 2006 convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order dated 11 October 2006 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. These sentences are to run concurrently. The respondent shall be taken into custody to serve the sentence immediately.

11 Satbir v. Surat Singh (1997) 4 SCC 192; State of Punjab v. Ajaib Singh (2005) 9 SCC 94

E. Parting remarks

60. While examining the victim, the Medical Board conducted what is known as the "two-finger test" to determine whether she was habituated to sexual intercourse. This Court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and retraumatizes women who may have been sexually assaulted, and is an affront to their dignity. The "two-finger test" or pre vaginum test must not be conducted

61. In Lillu v. State of Haryana,12 this Court held that the "twofinger test" violates the right to privacy, integrity, and dignity:

"13. … rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.

The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.

14. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity."

62. 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. The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth - a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history.

12 (2013) 14 SCC 643

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It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.

63. The legislature explicitly recognized this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A. In terms of Section 53A of the Evidence Act, evidence of a victim's character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.

64. The Ministry of Health and Family Welfare issued guidelines for health providers in cases of sexual violence.13 These guidelines proscribe the application of the "two-finger test":

"Per-Vaginum examination commonly referred to by lay persons as 'two-finger test', must not be conducted for establishing rape/ sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.

The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented."

65. Although the "two-finger test" in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today.

66. We direct the Union Government as well as the State Governments to:

Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals;

13 Ministry of Health and Family Welfare, Government of India, "Medico-legal care for survivors / victims of sexual violence" (19 March 2014)

Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and

Review the curriculum in medical schools with a view to ensuring that the "two-finger test" or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.

67. A copy of this judgment shall be shared with the Secretary, Ministry of Health and Family Welfare, Government of India. The Secretary, Ministry of Health and Family Welfare, Government of India shall transmit copies of this judgment to the Principal Secretary (Department of Public Health) of each state. The Principal Secretaries in the Departments of Health of each state shall also be responsible for ensuring the implementation of the directions issued in Part E of this judgment. The Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. The Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police.

68. 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.

69. The appeal is allowed in the above terms.

70. Pending application(s), if any, stand disposed of.

Divya Pandey Appeal allowed. (Assisted by : Deepak Panwar, LCRA)

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