The SC in the case of rape and murder made significant remarks and upheld the conviction of the Accused. It was observed that there is no bar on a dying declaration being recorded by the police and that the witnesses turning hostile does not necessarily vitiate the prosecution’s case. The SC additionally propounded that the two-finger test is insignificant to determine whether rape has been committed or not. The two-finger test has been banned and it has further been held that anybody conducting it shall be guilty of misconduct.
Brief Facts:
The Respondent committed rape upon the Victim after entering her house. After listening to the Victim’s cry for help, the family members of the Victim came to her room. The Respondent then poured kerosene on her and set her on fire. The Victim was rushed to the hospital and after this, her fard bayan was recorded.
After a few days, the Victim passed away. The Respondent pleaded not guilty and therefore, the trial was conducted.
The Sessions Court had convicted the Respondent of the alleged offenses. It was observed that the parents of the Victim turning hostile was not fatal to the prosecution’s case as the same could have been because of the bribes or threats by the Accused. It was also noted that the statements of the Victim which after her passing away became her dying declaration could be recorded by a police officer and there is no bar on it. It was concluded by the Court that the dying declaration was credible and it did not suffer from any error.
The HC on the other hand, set aside the judgment of the Sessions Court and acquitted the Accused on the ground that the parents of the Victim turned hostile and the statements of the deceased Victim cannot be made admissible as a dying declaration.
The present appeal is against the order of the HC setting aside the conviction of the Respondent.
Contentions of the Respondent:
The Respondent contended that apart from the dying declaration there was no other evidence to prove that the deceased was raped by the Respondent. It was also argued that the statements made by the Victim cannot qualify as a dying declaration as the Victim died after a month from the alleged incident.
Observations of the Court:
With respect to whether the statement of the deceased can be admissible as a dying declaration or not, the Court observed that the cause of the death of the Victim was septicemia caused due to the burn injuries sustained on her body. The Court pointed out that the statement will qualify as a dying declaration because the Victim’s statement is relevant with respect to the cause of her death as the reason for death is listed in the post mortem report. It was noted that the statement of the victim qualified as a dying declaration because the statement related to both causes of death and circumstances of the transaction which resulted in death (the victim explained how she was first raped and later the accused poured kerosene and set her on fire).
With respect to the admissibility and probative value of the dying declaration, the Court propounded that there is no bar on the dying declaration being recorded by the police and the admissibility of the same varies on a case-by-case basis. In the present case, it was well proved that the victim was fit to make a statement and therefore, it was held to be a voluntary and reliable dying declaration.
With respect to pieces of evidence to prove rape, the Court relied on the dying declaration and noted that merely because some witnesses turned hostile does not vitiate the case of the prosecution. The dying declaration of the Victim was absolutely clear and it was time and again stated by her that she has been raped.
The decision of the Court:
On the above-mentioned findings, the Court overturned the High Court’s order and convicted the accused.
Additional Remarks by the Supreme Court:
The Court in this case made few significant parting remarks. It observed that a two-finger test was conducted to determine whether the victim was habituated to sexual intercourse. The Court condemned the use of this test and re-iterated that the test is regressive and without scientific basis. It is neither indicative of proving nor disproving the allegations of rape. It is violative of the dignity of a rape survivor and therefore, it must not be conducted.
The Court pointed out that Section 375 of the IPC has no relation to the sexual life of a victim. A woman’s sexual history is insignificant to ascertain the probative value of her testimony and for the purposes of Section 375. The Court remarked that to check and comment on the sexual history of a woman is sexist and patriarchal and the same should not be done. The court issued directives to the Union and State Governments for ensuring that the guidelines formulated by the Ministry of Health and Family Welfare prohibiting two-finger tests are followed and circulated to all hospitals. The Court further held that any person who conducts the per vaginum examination shall be guilty of misconduct as the same is not allowed.
Cause Title: The State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai
Bench: Hon’ble Mr. Justice Dr. Dhananjaya Y Chandrachud; Hon’ble Ms. Justice Hima Kohli
Decided on: October 31, 2022
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(With input from news agency language)
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