2022 Supreme(SC) 1102

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, HIMA KOHLI, JJ.
The State of Jharkhand – Appellant
Versus
Shailendra Kumar Rai @ Pandav Rai – Respondent
Criminal Appeal No. 1441 of 2022
Decided On : 31-10-2022

IMPORTANT POINTS
(1) Rape – Two-Finger Test is based on incorrect assumption that a sexually active woman cannot be raped – Any person who conducts “two-finger test” in contravention of directions of Supreme Court shall be guilty of misconduct.
(2) 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.
(3) It is common for witnesses to turn hostile after death of victim (or even prior to it) for a variety of reasons.

Headnote:

(A) Indian Evidence Act, 1872 – Section 32 – 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 – Issue of whether a dying declaration recorded by police is admissible must be decided after considering facts and circumstances of each case – Fact that dying declaration is not in form of questions and answers does not impact either its admissibility or its probative value – It may not always be possible to record dying declarations in form of questions and answers – There is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated. (Paras 41, 43, 44 and 52)

(B) Indian Penal Code 1860 – Sections 302, 376, 341 and 448 – Indian Evidence Act, 1872 – Section 32 – Murder, rape, wrongful restraint and house trespass – Acquittal by High Court – Dying statement clearly described that respondent raped her and poured kerosene on her and set her on fire – Post-mortem report concludes that cause of death is septicaemia caused by burn injuries sustained by deceased – Statement of deceased indicates that she sustained burn injuries as a result of respondent having poured kerosene on her and setting her on fire – Dying declaration was made voluntarily and is true – Deceased was in a competent state of mind when she made a statement to I.O. – Victim’s death was a direct result of injuries inflicted upon her by respondent – There is nothing on record which gives rise to reasonable doubt as to respondent’s guilt – Lack of medical evidence as to commission of rape cannot be taken to mean that no rape was committed upon deceased – Witnesses who know deceased victim may turn hostile because they wish to move on with their lives – Certain witnesses including family members of deceased were declared hostile is insufficient to cast doubt upon prosecution’s case – Absence of evidence which establishes consistency of dying declaration over a period of time is not fatal to prosecution’s case – Prosecution proved its case beyond reasonable doubt before Sessions Court – High Court ought not to have overturned Sessions Court’s judgment – Judgment of High Court set aside and life sentence awarded by Trial Court restored. (Paras 39, 48, 49, 50, 54, 55 and 59)

(C) Indian Penal Code 1860 – Section 375 – Indian Evidence Act, 1872 – Section 53A – Rape – Two-Finger Test – In terms of Section 53A of Evidence Act, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to issue of consent or quality of consent, in prosecution of sexual offences – Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether ingredients of Section 375 of IPC are present in a particular case – So-called test is based on incorrect assumption that a sexually active woman cannot be raped – Nothing could be further from truth – A woman’s sexual history is wholly immaterial while adjudicating whether accused raped her – Probative value of a woman’s testimony does not depend upon her sexual history – It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for reason that she is sexually active – Although “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 – Any person who conducts “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of directions of Supreme Court shall be guilty of misconduct. (Paras 62, 65 and 68)

Facts of the case:

Present appeal arises from the judgment of the High Court of Jharkhand dated 27 January 2018. 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 1860 and sentenced him to suffer imprisonment for life.

Findings of Court:

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. 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. Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police.

Result : Appeal allowed.