By Ashmit Sen
In the Supreme Court of India
|NAME OF THE CASE||The State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai|
|CITATION||Criminal Appeal No 1441 of 2022|
|DATE OF THE CASE||31st October, 2022|
|APPELLANT||The State of Jharkhand|
|RESPONDENT||Shailendra Kumar Rai @ Pandav Rai|
|BENCH/JUDGE||Hon’Ble Justice Dr. Chandrachud, Hon’Ble Justice Ms. Kohli|
|STATUTES INVOLVED||Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, The Constitution of India|
|IMPORTANT SECTIONS/ARTICLES||Indian Penal Code: Sections – 300, 302,307,341, 375, 376,448 Code of Criminal Procedure: Sections – 173,174 Indian Evidence Act: Sections – 32(1), 60 Constitution of India – Article 136|
In the present case, the respondent was alleged to have raped the victim and after that had pored kerosene on her and set her on fire as a result of such burn injuries, she later died due to septicaemia. The sessions court had convicted the respondent but on an appeal to the High Court of Jharkhand, it had set aside the judgement of the sessions court and had acquitted the respondent on the basis that the victim’s statement before dying did not constitute a dying declaration and no conclusive evidence of any sexual intercourse by rape had been proved to which the State (the appellant) had invoked the jurisdiction of the Supreme Court by preferring an appeal under Article 136 of the Constitution of India where the Supreme Court had to decide whether the victim’s statement constituted a dying declaration or not withing the purview of Section 32(1) of the Indian Evidence Act and whether the prosecution had proved the guilt of the respondent beyond reasonable doubt or not and the Supreme Court had decided the case in the affirmative and overturned the judgement of the High Court and restored the judgement of the Sessions Court by convicting the respondent and made a parting remark that the “two-finger test”, used by the Medical Board in this present case to determine whether the victim was habituated to sexual intercourse or not , was an unethical and regressive test which negatively impacts the victim and has no scientific basis and hence should not be performed according to the opinion of the Supreme Court.
Rape has been defined under Section 375 of Indian Penal Code, 1860. According to Merriam-Webster Dictionary, rape is defined as an “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception” Rape is one of the most common crimes against women in India. According to the 2021 annual report of the National Crime Records Bureau (NCRB), 31,677 rape cases were registered across the country, or an average of 86 cases daily, a rise from 2020 with 28,046 cases, while in 2019, 32,033 cases were registered. Of the total 31,677 rape cases, 28,147(nearly 89%) of the rapes were committed by persons known to the victim and the share of victims who were minors or below 18 – the legal age of consent – stood at 10%.
To prove the offence of rape, the essential ingredients according to Section 375 of IPC, are as follows –
- There must be sexual intercourse as given within the purview of Section 375(a) to 375(d).
- Such sexual intercourse should be under any of the seven circumstances:
- Against her will;
- Without her consent;
- With consent obtained under fear of death or hurt;
- Consent given under misconception of fact that the man is her husband;
- Consent given because of unsoundness of mind, intoxication, or under influence of any stupefying or unwholesome substance;
- With a woman under eighteen years of age, with or without her consent;
- With a woman who is unable to communicate her consent.
Murder has been defined in Section 300 of IPC. According to Merriam-Webster Dictionary, murder is defined as “the crime of unlawfully and unjustifiably killing a person.”
According to Section 300, culpable homicide is murder, if it is done with – In the present case, it was alleged that the respondent after raping the victim had poured kerosene on her and set her on fire and as a result of such burn injuries, the victim had died due to septicaemia and the Supreme Court had held that the prosecution had proved the guilt of respondent beyond reasonable doubt and hence the respondent was guilty for the offence of rape and murder within the purview of Section 375 and Section 300 of IPC respectively and thereby convicted the respondent under Sections 302, 341, 376 and 448 of the IPC and 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 which were directed to run concurrently.
FACTS OF THE CASE
The facts of the case were admitted, as a dying declaration of the deceased victim, to the court and the summary of the case was that the respondent entered the house of the victim and deceased in Narangi village, on the afternoon of 7 November 2004 and it was alleged that he pushed her to the ground and committed rape upon her, while threatening to kill her if she sounded an alarm. The respondent allegedly poured kerosene on her and set her on fire on her after she called out for help. The victim’s family after hearing her cries immediately came to help and extinguished the fire and took her to Sadar Hospital, Deoghar, where she was admitted and underwent treatment for the injuries sustained by her.
The police officer-in-charge at PS Sarwna, received information regarding the incident and travelled to Deoghar, where he recorded the victim’s statement where she narrated the incident, and a FIR was registered at PS Sarwna based on the statement of the victim and the investigation began. Upon the completion of the investigation, the IO had 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.
The respondent denied his guilt on the basis of which, the case went to trial, where the Sessions Court, by its judgment dated 10 October 2006, convicted the respondent of offences under Sections 302, 341, 376 and 448 of the IPC and 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 which were directed to run concurrently. After that, the respondent preferred an appeal before the High Court of Jharkhand and by its judgment dated 27 January 2018, the High Court set aside the judgment of the Sessions Court and acquitted the respondent. The appellant, after the judgement given by the Jharkhand High Court, invoked the jurisdiction of the Supreme Court of India under Article 136 of the Constitution and challenged the decision of the High Court.
ISSUES RAISED BEFORE THE COURT
- Whether the statement made by the deceased before the Police Officer is relevant as a dying declaration under section 32(1) of the Indian Evidence Act 1872?
ARGUMENTS FROM THE APPELLANT SIDE
It was submitted on behalf of the appellants that the High Court of Jharkhand had not appreciated the evidence correctly as it was stated that 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 which the High Court had misunderstood and the post-mortem examination of the deceased was conducted within 12 hours of the time of death and the report concluded that the cause of death was septicaemia due to the burn injuries sustained by her.
ARGUMENTS FROM THE RESPONDENT SIDE
The submissions urged on behalf of the appellant had been opposed by the respondent, whose counsel made the following submissions that although the dying declaration indicated that the respondent had raped the deceased, the Medical Board’s report stated that no definite opinion could be given in this regard and there was no evidence other than the dying declaration to show that the respondent raped the deceased and that the victim died around a month after the occurrence of the incident complained of. Therefore, the statement made by the deceased to the IO was not a dying declaration.
- Indian Penal Code, 1860:
Section 300 – “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—
Secondly — If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly — If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
Fourthly — If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Section 302 – “Punishment for murder—Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.”
Section 307 – “Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts — [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]”
Section 341 – “Punishment for wrongful restraint —Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.”
Section 375 – “A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object, or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First – Against her will.
Secondly – Without her consent.
Thirdly – With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly – With or without her consent when she is under eighteen years of age.
Seventhly – When she is unable to communicate consent.
Explanation 1 – For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2 – Consent means an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1 – A medical procedure or intervention shall not constitute rape.
Exception 2 – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Section 376 – “Punishment for rape —
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever, —
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Section 448 – “Punishment for house-trespass — Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
- Indian Evidence Act, 1872:
Section 32(1) – “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.”
Section 60 – “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 may, if it thinks fit, require the production of such material thing for its inspection.”
- The Constitution of India:
Article 136 – “Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence, or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
With respect to the first issue at hand as to whether the statement made by the deceased would constitute a dying declaration within the meaning of Section 32(1) of Indian Evidence Act, 1872 or not, the Supreme Court had held that the statement of the deceased is relevant under Section 32(1) of the Indian Evidence Act 1872 as a dying declaration and had stated that the High Court of Jharkhand had misinterpreted the facts and had decided the issue incorrectly.
The Supreme Court had stated that the reliance of the High Court of Jharkhand on the decision in Moti Singh v. State of Uttar Pradesh to reach the conclusion that the victim’s statement was inadmissible as a dying declaration in the present case, was misplaced as the facts and circumstances of the both the cases were different. According to the Supreme Court, in the present case, the post-mortem report established that the victim died as a result of septicaemia caused by her burn injuries. Therefore, the statement of the victim in the present case was indeed a statement relevant as to the cause of her death and in regard to the circumstances which eventually resulted in her death.
Therefore, the Supreme Court stated that the statement satisfied the conditions laid down in sub-clause (1) of Section 32 as it related to both, the cause of death as well as to the circumstances of the transaction which resulted in death because the statement clearly described that the respondent poured kerosene on her and set her on fire and the post-mortem report also concluded that the cause of death was septicaemia caused by the burn injuries sustained by the deceased. In addition, the statement of the deceased disclosed that the respondent raped her before setting her on fire which was a description of the circumstances of the transaction which resulted in her death and therefore, satisfied the conditions in Section 32(1) and was itself a relevant fact. The Supreme Court for these reasons had held the statement made by the deceased shall be considered to be a dying declaration for the purpose of adjudicating this appeal.
Regarding the admissibility and probative value of the dying declaration, the Supreme Court had stated that there was no rule to the effect that a dying declaration was inadmissible when it is recorded by a police officer instead of a Magistrate. Here, the Supreme Court also relied on its judgement given in Khushal Rao v. State of Bombay, where it had formulated the yardstick against which dying declarations may be evaluated which included that a dying declaration has to be on the same footing as another piece of evidence and has to be judged on the basis of facts and circumstances of each case and to test the reliability of such declaration, focus has to be given on the capacity of the person to remember the facts stated and whether he had been impaired or not, at the time of making the statement, by circumstances beyond his control. The Court had also stated the importance of the statement being consistent throughout and of making the statement at the earliest opportunity so as to eliminate the chance of tutoring by interested parties.
The Supreme Court relied on the judgement given in Ram Bihari Yadav v. State of Bihar where it was held that the admissibility or probative value of dying declaration was not impacted if the declaration was not in the form of questions and answers.
The Supreme Court stated that “the High Court had 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 indicated that Dr. RK Pandey stated that he was examining a patient on the adjacent table and not in the adjacent room as erroneously stated by the High Court and it 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 made it clear that the dying declaration could not be rejected on the ground that he was in another room when it was recorded as he was evidently in the same room and the dying declaration was recorded by Lallan Prasad in his presence and both Lallan Prasad and Dr. RK Pandey had attested to this fact during their examinations.
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. Therefore, there was no reason to believe that the statement was a result of tutoring or that the deceased was incapable of making a statement and nothing on the record indicated 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 did not impeach the authenticity of the dying declaration because Dr. RK Pandey had testified that it was recorded in his presence.”
The Supreme Court was therefore satisfied that the dying declaration was made voluntarily and was true and the deceased was in a competent state of mind when she made a statement to the IO, Lallan Prasad. With respect to the second issue as to whether the prosecution had established its case by proving the respondent guilty beyond reasonable doubt or not, the Supreme Court had held that the prosecution has proved its case against the respondent beyond reasonable doubt.
The Supreme Court had stated that the dying declaration made it abundantly clear that the respondent had raped the deceased, poured kerosene on her, and set her on fire. The cause of death was septicaemia, 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 and there was nothing on record which gave rise to reasonable doubt as to the respondent’s guilt. 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 and a lack of medical evidence as to the commission of rape could not be taken to mean that no rape was committed upon the deceased as her dying declaration stated that the respondent raped her before setting her on fire and there was no rule requiring the corroboration of the dying declaration through medical or other evidence, when the dying declaration was not otherwise suspicious.
The Supreme Court also relied on its judgement given in Vishnu v. State of Maharashtra, where it was held that a medical expert’s opinion was 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.”
The Supreme Court also stated that the fact that certain witnesses including the family members of the deceased (PW 1 – 5 and PW 10) were declared hostile was insufficient to cast doubt upon the prosecution’s case as it was not the prosecution’s case that the hostile witnesses were eye witnesses to the crime rather, those witnesses’ testimonies were relevant mainly to show that the deceased had consistently stated that the respondent raped and murdered her, to different persons. The absence of evidence which established the consistency of the dying declaration over a period of time was not fatal to the prosecution’s case as the dying declaration was recorded in the victim’s words and read out to her, after which her signature was affixed on it.
For these reasons, the Supreme Court found that the prosecution proved its case beyond reasonable doubt before the Sessions Court and the High Court should not have overturned the Sessions Court’s judgment. The Supreme Court thus, exercised its power to do complete justice and therefore set aside the High Court’s decision of acquittal dated 27 January 2018 and restored the Sessions Court’s judgment dated 10 October 2006, to prevent miscarriage of justice by 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 where these sentences were to run concurrently.
The Supreme Court in this case had also made certain parting remarks regarding the “two-finger test”. The Court stated in this case that while examining the victim, the Medical Board had conducted what was known as the “two-finger test” to determine whether she was habituated to sexual intercourse, but the Supreme Court had time and again deprecated the use of this regressive test in cases alleging rape and sexual assault as this test has no scientific basis and neither proved nor disproved allegations of rape. It re-victimized and re-traumatized women who may have been sexually assaulted and was an affront to their dignity. The “two-finger test” or pre-vaginum test therefore must not be conducted according to the opinion of Supreme Court.
Rape is not only a crime against a woman, but it is a crime against the entire society, and it destroys the entire psychology of a woman and pushes her into a deep emotional trauma. In the present case, the High Court by misinterpreting the facts of the present case and relying on case laws not relevant to the present, had thereby given an erroneous judgement by acquitting the respondent and had caused injustice to the victim and that injustice has been corrected by the Supreme Court by setting aside the judgement of the High Court and rightly restoring the judgement of the Sessions Court by convicting the respondent for the offences of rape and murder. In my view, the supreme court had rightly pointed out that cases of rape will be there where there might not be sufficient evidence to prove the offence and, in those cases, evidences in the nature of dying declaration have to be considered if they fulfil the criteria given in Section 32(1) of the Indian Evidence Act, 1872 to prove the guilt of the accused. The parting remark of the Supreme Court regarding the “Two finger Test” is also very valid as there is no scientific basis of the test and it only re-traumatizes and re-victimizes the victim, and such tests should not be performed in my view.
 See The Indian Evidence Act, 1872, Sec. 60.
 The Constitution of India, 1950, Art. 136(2).
 Khushal Rao v. State of Bombay AIR 1958 SC 22.
 Ram Bihari Yadav v. State of Bihar AIR 1998 4 SCC 517.
Vishnu v. State of Maharashtra AIR 2006 1 SCC 283.
 Satbir v. Surat Singh (1997) 4 SCC 192; State of Punjab v. Ajaib Singh (2005) 9 SCC 9.
 4th Semester Student at St. Xavier’s University, Kolkata.
 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/rape#:~:text=%3A%20unlawful%20sexual%20activity%20and%20usually,or%20deception%20compare%20sexual%20assault%2C (Last visited on June 17, 2023).
 The Hindu, “India lodged average 86 rapes daily, 49 offences against women per hour in 2021: NCRB data”, 31 August 2022 (Last visited on June 17, 2023).
 The Wire, “Nearly 20% Increase in Rapes Across India in 2021, Rajasthan Had Highest Cases: NCRB”, 30 August, 2022 (Last Visited on June 17, 2023).
 K I Vibhute, PSA Pillai’s Criminal Law, Page – 833, 14th Edition, 2022.
 The State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai (2022) SCC Online SC 1494.
 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/murder#:~:text=%3A%20to%20kill%20(a%20person),of%20murdering%20the%20missing%20hiker (Last visited on June 17, 2023).
 See The Indian Penal Code, 1860, Sec. 302.
 See The Indian Penal Code, 1860, Sec. 307.
 See The Indian Penal Code, 1860, Sec. 375(a).
 See The Indian Penal Code, 1860, Sec. 375(b).
 See The Indian Penal Code, 1860, Sec. 375(c).
 See The Indian Penal Code, 1860, Sec. 375(d).
 See The Indian Penal Code, 1860, Sec. 448.