THE STATE OF JHARKHAND versus SHAILENDRA KUMAR RAI @ PANDAV RAI

[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 ANDHIMA KOHLI, JJ.]

Evidence Act, 1872 – s.32(1) – Dying declaration – PenalCode, 1860 – ss.302,376,341 and 448 – Victim was raped and seton fire – Respondent was convicted u/ss. 302, 341, 376,448 by theSessions Court onthebasis of dying declaration of the victim, andsentenced – Judgment set aside by High Court inter alia holding thatthe statement made by the deceased is not admissible as dyingdeclaration, respondent was acquitted – On appeal, held: Post-mortem report concludes that the cause of death is septicemia causedby the burn injuries sustained by the victim – Statement of the victimsatisfies the conditions laid down in s.32(1) as it relates to both, thecause of death as well as to the circumstances of the transactionwhich resulted in death – Her statement clearly described that therespondent poured kerosene on her and set her on fire – Statementof the deceased satisfies the conditions in s.32(1) and is itself arelevant fact –It is dying declaration – Prosecution proved itscase beyond reasonable doubt – Judgment of High Court set aside– Sessions Court’s judgment convicting therespondent and the ordersentencing him to rigorous imprisonment for life for the offencepunishable u/s.302 and rigorous imprisonment for 10 years for theoffence punishable u/s.376 is restored – Sentences to runconcurrently– Evidence Act, 1872 –s.60.

Evidence Act, 1872 – s.32(1) – Dying declaration –Admissibility and probative value of –Held: There is no rulemandating the corroboration of the dying declaration throughmedical or other evidence, when the dying declaration is nototherwise suspicious – Further, although dying declaration oughtto ideally be recorded by Magistrate if possible, it cannot be saidthat dying declarations recorded by police personnel areinadmissible for that reason alone – The issue of whether dying

Adeclaration recorded by the police is admissible must be decidedafter considering the facts and circumstances of each case– Also,the fact that the dying declaration is not in the form of questionsand answers does not impact either its admissibility or its probativevalue – In the present case, the dying declaration was recorded inthe victim’s words and read out to her, after which she affixed herBsignature to it– Victim was in competent state of mind when shemade the statement– It was made voluntarily and is true.

Criminal Law – Evidence –Witnesses – Victim raped and seton fire – Family members of the victim-deceased and other personsknown to her were declared hostile – Effect of, if any onCprosecution’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 perDvaginum examination (while examining person alleged to havebeen subjected to sexual assault) in contravention of the directionsof Supreme Court shall be guilty of misconduct – Criminal Law(Amendment) Act 2013 – Evidence Act, 1872 – s.53A.

Allowing the appeal, the CourtE

HELD: 1.The statement of the deceased is relevant underSection 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)Fstates that the cause of death of the victim was septicemia, whichwas result of the burn injuries sustained by the victim. Thedefence has sought to assail the veracity of this finding. Inresponse to question posed to him during cross-examination,Dr. R Mahto stated that he distinctly remembered that the doctorwho was treating the deceased referred her to Bokaro BurnGHospital. However, she was not shifted to this hospital. Theunnamed doctor who supposedly referred the deceased to BokaroBurn Hospital was not named as witness in the proceedingsbefore the Sessions Judge and was not called to depose inevidence. Counsel appearing for respondent in the proceedingsHbefore the High Court argued that the fact that the deceased was

not shifted to Bokaro Burn Hospital was an interveningcircumstance. He urged that consequently, it was not proved thatthe deceased died because of her burn injuries. The suggestionappears to be that the death of the victim could have beenprevented if the advice supposedly given by the unnamed doctor(to shift her to Bokaro Burn Hospital) was heeded. As noted inthe segment on the High Court’s decision, the High Courtaccepted this argument and held that the statement of thedeceased could not be treated as dying declaration since thecause of death was not established. Dr. R Mahto’s testimony (onlyto the limited extend that he seeks to testify as to the opinion ofanother doctor who supposedly referred the deceased to BokaroBurn Hospital) is inadmissible in view of Section 60 of theEvidence Act. Here, the fact that an unnamed doctor referredthe deceased to Bokaro Burn Hospital was sought to beestablished indirectly. The unnamed doctor’s opinion as to thebest course of treatment for the deceased was sought to bebrought out through Dr. R Mahto’s cross-examination. This isimpermissible due to the interdict in Section 60 of the EvidenceAct, in terms of which any oral evidence which refers to an opinionmust be the evidence of the person who holds that opinion. Histestimony (as to the limited point on whether the victim wasreferred to Bokaro Burn Hospital by another doctor) is thereforeinadmissible and would amount to hearsay. However, histestimony in his examination-in-chief as well as his other answersduring the cross-examination are not vitiated. His testimonyrefers to his own opinion and the grounds on which he holds it.The remaining portion of his testimony, including on the cause ofdeath of the victim, is no doubt admissible. Dr. R Mahto’stestimony is clear that the cause of death is septicemia caused bythe burn injuries sustained by the victim. In the present case,the post-mortem report establishes that the victim died as resultof septicemia caused by her burn injuries. Therefore, thestatement of the victim in the present case is indeed statementrelevant as to the cause of her death and in regard to thecircumstances 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 SC900 : [1964] SCR 688 – held inapplicable.

1036SUPREME COURT REPORTS

Ab. The statement of the deceased relates to the cause ofher death and the circumstances of the transaction which resultedin her death

Section 32 of the Evidence Act provides that in certaincases, statements by persons who cannot be called as witnessesB(and are therefore unable to give direct evidence) are relevant.Dying declarations are made relevant under sub-clause (1) ofSection 32. In the present case, the statement satisfies theconditions laid down in sub- clause (1) of Section 32 as it relatesto both, the cause of death as well as to the circumstances of thetransaction which resulted in death. This is because the statementCclearly described that the respondent poured kerosene on herand set her on fire. The post-mortem report concludes that thecause of death is septicemia caused by the burn injuries sustainedby the deceased. The statement of the deceased indicates thatshe sustained the burn injuries as result of the respondent having

Dpoured kerosene on her and setting her on fire. In addition, thestatement of the deceased discloses that the respondent rapedher before setting her on fire – this is description of thecircumstances of the transaction which resulted in her death. Thestatement of the deceased, therefore, satisfies the conditions inSection 32(1) and is itself relevant fact. It shall be consideredEto be dying declaration for the purpose of adjudicating thisappeal. [Paras 37, 39 and 40][1053-B; 1054-B-E]c. The admissibility and probative value of the dyingdeclaration

FThere is no rule to the effect that dying declaration isinadmissible when it is recorded by police officer instead of aMagistrate. Although dying declaration ought to ideally berecorded by Magistrate if possible, it cannot be said that dyingdeclarations recorded by police personnel are inadmissible forthat reason alone. The issue of whether dying declarationGrecorded by the police is admissible must be decided afterconsidering the facts and circumstances of each case. In itsjudgment, the High Court incorrectly observed that in his cross-examination, Dr. RK Pandey stated that he was examining anotherpatient in the adjacent room when the victim’s dying declaration

was recorded. The record of the cross-examination indicates thatDr. RK Pandey stated that he was examining patient on theadjacent table (not in the adjacent room as erroneously stated bythe High Court). The High Court mistakenly relied on this factto hold that the victim’s statement could not be treated as herdying declaration. Dr. RK Pandey’s answer to the question hewas asked during cross-examination makes it clear that the dyingdeclaration cannot be rejected on the ground that he was inanother room when it was recorded – he was evidently in thesame room and the dying declaration was recorded by LallanPrasad in his presence. Both Lallan Prasad and Dr. RK Pandeyhave attested to this fact during their examination(s). Dr. RKPandey was also satisfied that the deceased was physically andmentally fit to make statement, and certified the same in writing.The dying declaration was recorded in the victim’s words andread out to her, after which she affixed her signature to it. Thereis no reason to believe that the statement was result of tutoringor that the deceased was incapable of making statement.Nothing on the record indicates that there was any enmitybetween the deceased and the respondent, which would lead thedeceased to narrate an untrue account of events and falselyimplicate the respondent. Further, Lallan Prasad was unable toremember whether the deceased was admitted in the generalward or the ICU. This fact does not impeach the authenticity ofthe dying declaration because Dr. RK Pandey has testified that itwas recorded in his presence. The dying declaration was madevoluntarily and is true. The deceased was in competent state ofmind when she made 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; SurinderKumar v. State of Punjab (2012) 12 SCC 120 : [2012]9 SCR 1019 – relied on.

2.1 The prosecution has proved its case against therespondent beyond reasonable doubt

The dying declaration makes it abundantly clear that therespondent raped the deceased, poured kerosene on her, and

Aset her on fire. The cause of death was septicemia, which occurredas result of the burn injuries. Hence, the victim’s death was adirect result of the injuries inflicted upon her by the respondent.There is nothing on record which gives rise to reasonable doubtas to the respondent’s guilt. Learned counsel for the respondenthas urged that the Medical Board did not find any evidence ofBrape and that the respondent is therefore not guilty of raping thedeceased. The report prepared by the Medical Board stated thatthe possibility of intercourse could not be ruled out although nodefinite opinion could be given in this regard. lack of medicalevidence as to the commission of rape cannot be taken to meanCthat no rape was committed upon the deceased. Her dyingdeclaration unequivocally states that the respondent raped herbefore setting her on fire and there is no rule mandating thecorroboration of the dying declaration through medical or otherevidence, when the dying declaration is not otherwise suspicious.[Paras 49 and 50][1057-C-F]DVishnu 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 SCR621– relied on.E2.2 PW 1 – 5 and PW 10 (being the family members of thedeceased and other persons known to her) were declared hostileduring the proceedings in the Sessions Court. It is common forwitnesses to turn hostile after the death of the victim (or evenprior to it) for variety of reasons. In addition to these factors,witnesses who know the deceased victim may turn hostile becauseFthey wish to move on with their lives. Testifying as to thecircumstances surrounding the rape and death of loved one canbe deeply traumatizing event, which is only compounded by theslow pace of the criminal justice system. That certain witnessesincluding the family members of the deceased were declaredGhostile is insufficient to cast doubt upon the prosecution’s case.It was not the prosecution’s case that the hostile witnesses wereeye witnesses to the crime. Rather, these witnesses’ testimonieswere relevant mainly to show that the deceased consistently statedthat the respondent raped and murdered her, to different persons.

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

2.3 The prosecution proved its case beyond reasonabledoubt before the Sessions Court. The High Court ought not tohave overturned the Sessions Court’s judgment. While this Courtdoes not ordinarily interfere with orders of acquittal passed byHigh Courts, it may exercise its power to do complete justiceand reverse orders of acquittal to avert miscarriage of justice.The High Court’s decision is set aside and restore the SessionsCourt’s judgment convicting the respondent of offencespunishable under Sections 302, 341, 376 and 448 of the IPC, aswell as its order sentencing the respondent to rigorousimprisonment for life for the offence punishable under Section302 of the IPC and rigorous imprisonment for 10 years for theoffence punishable under Section 376 of the IPC. These sentencesare to run concurrently. The respondent shall be taken intocustody 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) 1SCC 481 : 1996 (9) JT 654; Ramesh v. State ofHaryana, (2017) 1 SCC 529 : [2016] 8 SCR 936; Satbirv. 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) 14SCC 643 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.B1441 of 2022.

From the Judgment and Order dated 27.01.2018 of the High Courtof 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 theCAppellant.

Braj Kishore Mishra, Bikram, Abhishek Yadav, Advs. for theRespondent.

The Judgment of the Court was delivered by

DDR. DHANANJAYA Y CHANDRACHUD, J.

Table of Contents*

A.Background........................................................................4

i.An overview of the testimonies of the witnessesexamined by the prosecution.......................................5E

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

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

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

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

e.Suresh Yadav, PW 12..............................................9f.Rekha Dasgupta, PW 7..........................................10

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

ii.An overview of the testimonies of the witnessesGexamined by the defence...........................................11

a.Dhirendra Rai, DW 1..............................................11b.Dasrath Tiwary, DW 2...........................................11c.Balmukund Rai, DW 3............................................11

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

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

iv. The High Court’s judgment on appeal......................14B.Issues...............................................................................15C.Submissions......................................................................16

D.Analysis............................................................................17B

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

a.The victim died due to the burn injuries sustained byher.......................................................................17C

b.The statement of the deceased relates to the causeof her death and the circumstances of the transactionwhich resulted in her death.....................................20

c.The admissibility and probative value of the

dying declaration....................................................22D

ii.The prosecution has proved its case againstthe respondent beyond reasonable doubt.................26

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

1. This appeal arises from the judgment of the High Court ofJharkhand dated 27 January 2018. The High Court allowed the appealby 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 SessionsJudge had convicted the respondent for offences punishable underSections 302, 376, 341 and 448 of the Indian Penal Code 1860[1] andsentenced him to suffer imprisonment for life.

A. Background

2. The case of the prosecution is that the respondent entered thehouse of the victim and deceased in Narangi village, on the afternoon of7 November 2004. It is alleged that he pushed her to the ground andcommitted rape upon her, while threatening to kill her if she sounded an

Aalarm. She called out for help, at which point the respondent allegedlypoured kerosene on her and set her on fire with matchstick. Her criesfor help led to her grandfather, mother , and resident of the village tocome to her room. The respondent is alleged to have fled the sceneupon seeing them.B3. The victim’s family (along with the villager) extinguished the

B3. The victim’s family (along with the villager) extinguished thefire and took her to Sadar Hospital, Deoghar, where she was admittedand underwent treatment for the injuries sustained by her. The stationin-charge at PS Sarwna, received information regarding the incidentand travelled to Deoghar, where he recorded the victim’s ‘fard beyan’Con the same day (i.e., 7 November 2004). In her statement, she narratedthe incident as described in paragraph 2 above.

4. FIR No. 163 of 2004 was registered at PS Sarwna on the basisof the statement of the victim and the investigation commenced. LallanPrasad was the IO and later, Suresh Yadav took over the investigationDfrom him. Upon the completion of the investigation, the IO submitted acharge-sheet under Section 173 of the Code of Criminal Procedure 1973for offences under Sections 307, 341, 376 and 448 of the IPC. Thevictim died on 14 December 2004, leading to the submission of asupplementary charge-sheet against the respondent, with reference toSection 302 of the IPC.E

5. The respondent denied his guilt.

6. During the trial, the prosecution examined twelve witnesses insupport of its case and the defence examined three witnesses. Anoverview of their testimonies in chief- and cross-examination as well asFtheir status as witnesses follows.

i.An overview of the testimonies of the witnessesexamined by the prosecution

a.Lallan Prasad, PW 11

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

the declaration as well. Also in Lallan Prasad’s presence, the grandfather and mother of the victim and co-villager affixed their signaturesto the declaration and Dr. RK Pandey certified that the victim was fit tomake statement and affixed his signature to the statement. LallanPrasad stated that Dr. RK Pandey was present when he recorded thestatement of the deceased.

8. Thereafter, he recorded the statements of Dr. RK Pandey, andother witnesses. senior nurse, Rekha Dasgupta, produced the victim’sundergarments; Lallan Prasad took them into custody and prepared aseizure list recording the same.

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

10. In response to the questions posed to him during cross-examination, Lallan Prasad stated that he did not make requisition tothe CJM, Deoghar to record the statements of either the respondent orthe deceased. Further, he did not request the doctor on duty at the timeor the civil surgeon to record the victim’s statement. He stated that herecorded her statement himself as her health was rapidly deteriorating.

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

b.Dr. RK Pandey, PW 6

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

Ac.Dr. Minu Mukherjee, PW 9

13. Dr. Minu Mukherjee, Medical Officer at Sadar Hospital,deposed that she was member of the Medical Board constituted toexamine the victim when she was undergoing treatment for her injuries.She testified that the Medical Board examined the deceased on 7BNovember 2004 and made the following findings:

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

b.No foreign hair was found in the pubic region of thedeceased;

c.A pathological report based on vaginal smear revealedthat there was no spermatozoa (living or dead) in the pubicregion of the deceased;

d.A vaginal examination revealed that two fingers wereadmitted easily; and

e.The deceased had 14 upper and lower teeth, which wereincomplete. The pubic symphysis was 40%. An X-ray ofher wrist indicated that she was below 17 years.

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

a.The deceased was about 16 years of age; and

b.The possibility of intercourse could not be ruled out althoughno definite opinion could be given in this regard.

FThe Medical Board’s findings as well as its opinion was recordedin report prepared by Dr. Minu Mukherjee. The other members of theMedical Board affixed their signatures to this report.

15. In response to the questions posed to her during cross-examination, Dr. Minu Mukherjee stated that mobile sperm can be spottedGup to 72 hours after intercourse and non-mobile sperm can be spotted upto 7-10 days after intercourse. She further stated that the deceased mayhave engaged in intercourse prior to date of the alleged crime, and thatthe admission of two fingers in her vagina meant that she was habituatedto sexual intercourse. She also denied the defence’s suggestion that sheprepared the medical report because higher ranking officials pressurizedHher to do so.

d.Dr. R Mahto, PW 8

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

a.The body had multiple ulcers scattered across it, with scabson the head, face and chest. These injuries were caused bydeep burns and were about six weeks old;

b.Various dissections revealed that the skull was intact, thebrain matter was pale, the lungs were pale, the rightchamber of the heart contained blood and the left chamberwas empty, the stomach and the urinary bladder were empty.CThe liver, the spleen and the kidneys were congested.

17. Based on his findings, Dr. R Mahto concluded that the victim’sdeath was caused by septicemia, which was result of the deep burninjuries sustained by the victim. He recorded his findings and opinion ina post-mortem report.

18. In response to the questions posed to him during cross-examination, he stated that those who suffer from septicemia mayexperience change in their mental state, due to which they may beirritable and unresponsive upon being asked any questions. He also statedthat the doctor who was treating the deceased referred her to the BokaroBurn Hospital.

e.Suresh Yadav, PW 12

19. Suresh Yadav, police officer at PS Sarwna, deposed that hetook over the investigation of the case from Lallan Prasad on 18November 2004. He submitted charge-sheet under Section 173 of theCrPC 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 toSadar Hospital and prepared an inquest report under Section 174 of theCrPC. Thereafter, he received the post-mortem report and submitted asupplementary charge-sheet against the respondent, with reference toSection 302 of the IPC.

f.Rekha Dasgupta, PW 7

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

Ag.Hostile witnesses

21. The following witnesses initially supported the prosecution’scase but were later declared hostile:

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

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

c.Mritunjay Ray, PW 3;

d.Sanjay Kumar, PW 4;

e.Sunil Kumar Roy, PW 5; and

Cf.Bal Krishna Ray, PW 10.

ii.An overview of the testimonies of the witnessesexamined by the defence

a.Dhirendra Rai, DW 1

D22. Dhirendra Rai, resident of Narangi village, deposed that afalse case had been instituted against the respondent and that one KashiRai and the respondent had disagreement concerning the irrigation ofcertain land. He testified that he entered the house of the deceased andsaw that she was on fire but did not make an attempt to extinguish theflames. According to him, none of the family members of the deceasedEwere present at the time.

23. In response to the questions posed to him during cross-examination, he stated that he had not made statement to the policepersonnel who visited the village to investigate the crime.

Fb.Dasrath Tiwary, DW 2

24. Dasrath Tiwary, resident of Narangi village, deposed that hesaw the deceased after she had sustained the burns, and that she wasnot in position to speak.

c.Balmukund Rai, DW 3

25. Balmukund Rai, resident of Narangi village, testified that thedeceased sustained burns as 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 CourtHconvicted the respondent of offences under Sections 302, 341, 376 and

448 of the IPC. By its order dated 11 October 2006, the Sessions Courtsentenced the respondent to rigorous imprisonment for life for the offencepunishable under Section 302 of the IPC and rigorous imprisonment for10 years for the offence punishable under Section 376 of the IPC. Thesesentences were directed to run concurrently. separate sentence wasnot deemed to be required for the offences punishable under Sections341 and 448 of the IPC.

27. The Sessions Court’s conviction was based on its appreciationof the evidence on record as well as the position of the law, in the followingterms:

a.The defence’s averment that there was no certificate as tothe mental fitness of the declarant / deceased at the time ofrecording the dying declaration was rejected because Dr.RK Pandey had certified that the deceased was mentallyfit to make statement;

b.The argument of the defence that the family members ofthe deceased being declared hostile witnesses was fatal tothe prosecution’s case was not accepted because it wasnot the prosecution’s case that the hostile witnesses wereeye witnesses to the incident complained of. Instead, thehostile witnesses were sought to be examined to establishthat the deceased told her family members that the accusedraped her and set her on fire. The Sessions Court notedthat the hostile witnesses may have been persuaded not totestify against the accused through bribes or because ofthreats to their life or property. This fact alone would notprove fatal to the prosecution’s case;

c.There is no bar to police officer recording dyingdeclaration;

d.PW 11’s testimony that Dr. BK Pandey certified that thedeceased was mentally and physically fit instead of Dr. RKPandey (PW 6) was typographical error. Hence, thedefence’s suggestion that doctor named BK Pandey wason duty at Sadar Hospital and that he refused to certify thatthe deceased was physically and mentally fit to make astatement was rejected;

Ae.Dr. RK Pandey’s testimony that the deceased was in agonydoes not lead to the conclusion that she was not fullyconscious while making statement to the IO;

f.Dr. Minu Mukherjee’s testimony that she did not find anysigns of rape does not conclusively answer the question ofBwhether the respondent raped the deceased. Opinions ofmedical officers will not discredit witnesses of fact; and

g.The fact that the bottle seized from the place of the crimewas not sent for chemical analysis does not lead to theconclusion that the respondent did not pour kerosene onCthe deceased.

The Sessions Court concluded that the dying declaration wasvoluntary, credible, and did not suffer from any infirmities. It thereforeheld that the prosecution had proved its case beyond reasonable doubt,and convicted the respondent of offences punishable under SectionsD302, 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 ofJharkhand. By its judgment dated 27 January 2018, the High Court setaside the judgment of the Sessions Court and acquitted the respondent,Efor the following reasons:

a.The family members of the deceased were declared to behostile witnesses;

b.Dr. RK Pandey stated in his examination-in-chief that thedying declaration was recorded in his presence. However,Fhe contradicted himself during the cross-examination, wherehe stated that he was with another patient in roomadjacent to the one in which the deceased was being treated.Hence, the dying declaration was not recorded in hispresence;

c.In response to question posed to him during cross-examination, Dr. R Mahto stated that the victim’s familyhad received advice that the victim ought to be taken toBokaro Burn Hospital for better treatment but they did notdo so;

d.The statement made by the deceased is not admissible as aAdying declaration due to the decision in Moti Singh v. Stateof Uttar Pradesh;[2] and

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

For these reasons, the High Court held that the prosecution hadfailed to prove the charges against the respondent beyond reasonabledoubt. The appellant invoked the jurisdiction of this Court under Article136 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 onbehalf of the parties, two questions arise for determination:

a.Whether the statement of the deceased is relevant underSection 32(1) of the Indian Evidence Act 1872;[3] and

b.Whether the prosecution has proved the charges againstthe respondent beyond reasonable doubt.

C. Submissions

30. Mr. Vishnu Sharma led arguments on behalf of the appellant.His submissions were:

a.The High Court has not appreciated the evidence correctly:Dr. RK Pandey was attending to patient on the tableadjacent to the deceased, and not to patient in roomadjacent to the one in which the deceased was present;and

b.The post-mortem examination of the deceased wasconducted within 12 hours of the time of death. The post-mortem report concluded that the cause of death wassepticemia due to the burn injuries sustained by her.

31. The submissions urged on behalf of the appellant have beenopposed by the respondent, whose counsel Mr. Braj Kishore Mishramade the following submissions:

2 AIR 1964 SC 900

3 “Evidence Act”

Aa.Although the dying declaration indicates that the respondentraped the deceased, the Medical Board’s report stated thatno definite opinion could be given in this regard. There is noevidence other than the dying declaration to show that therespondent raped the deceased; and

Bb.The victim died around month after the occurrence of theincident complained of. The statement made by thedeceased to the IO is therefore not dying declaration.

D. Analysis

i.The statement of the deceased is relevant underCSection 32(1) of the Indian Evidence Act 1872

a.The victim died due to the burn injuries sustained byher

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

33. In response to question posed to him during cross-examination,Dr. R Mahto stated that he distinctly remembered that the doctor whowas treating the deceased referred her to Bokaro Burn Hospital. However,Eshe was not shifted to this hospital. The unnamed doctor who supposedlyreferred the deceased to Bokaro Burn Hospital was not named as awitness in the proceedings before the Sessions Judge and was not calledto depose in evidence. Counsel appearing for respondent in theproceedings before the High Court argued that the fact that the deceasedFwas not shifted to Bokaro Burn Hospital was an intervening circumstance.He urged that consequently, it was not proved that the deceased diedbecause of her burn injuries. The suggestion appears to be that the deathof the victim could have been prevented if the advice supposedly givenby 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 CourtGaccepted this argument and held that the statement of the deceasedcould not be treated as dying declaration since the cause of death wasnot established.

34. Dr. R Mahto’s statement that another doctor referred thedeceased to Bokaro Burn Hospital is relied upon to urge that such aH

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

a.An unnamed doctor examined the deceased;

b.This doctor formed the opinion that the deceased ought tobe treated at Bokaro Burn Hospital;

c.This doctor referred the deceased to Bokaro Burn Hospital;

d.The deceased and her family ignored this advice; and

e.The victim’s death could have been prevented if she wastreated at Bokaro Burn Hospital instead of Sadar Hospital.

Dr. R Mahto’s testimony (only to the limited extend that he seeksto testify as to the opinion of another doctor who supposedly referredthe deceased to Bokaro Burn Hospital) is inadmissible in view of Section60 of the Evidence Act. Section 60 stipulates that oral evidence must bedirect:

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

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

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

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

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

Provided that the opinions of experts expressed in any treatisecommonly offered for sale, and the grounds on which such opinionsare held, may be proved by the production of such treatises if theauthor is dead or cannot be found; or has become incapable ofgiving evidence, or cannot be called as witness without an amountof delay or expense which the Court regards as unreasonable:

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

[2022] 13 S.C.R.

Amay, if it thinks fit, require the production of such material thingfor its inspection.”

(emphasis supplied)

35. Here, the fact that an unnamed doctor referred the deceasedto Bokaro Burn Hospital was sought to be established indirectly. TheBunnamed doctor’s opinion as to the best course of treatment for thedeceased was sought to be brought out through Dr. R Mahto’s cross-examination. This is impermissible due to the interdict in Section 60 ofthe Evidence Act, in terms of which any oral evidence which refers toan opinion must be the evidence of the person who holds that opinion.CHis testimony (as to the limited point on whether the victim was referredto Bokaro Burn Hospital by another doctor) is therefore inadmissibleand would amount to hearsay. However, his testimony in his examination-in-chief as well as his other answers during the cross-examination arenot vitiated. His testimony refers to his own opinion and the grounds onwhich he holds it. The remaining portion of his testimony, including onDthe cause of death of the victim, is no doubt admissible. Dr. R Mahto’stestimony is clear that the cause of death is septicemia caused by theburn 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 wasEinadmissible as dying declaration. In that case, the accused was allegedto have shot the victim. The victim was admitted to the hospital, treatedfor his injuries, and discharged thereafter. He died few weeks afterhaving sustained the gunshot wounds and he was cremated before apost-mortem examination could be conducted. This Court held that thereFwas no evidence on record as to the cause of death of the victim.Consequently, his statement was not considered statement as to thecause of his death or any of the circumstances of the transaction whichresulted in his death, under Section 32(1) of the Evidence Act. The HighCourt’s reliance on Moti Singh (supra) is misplaced because in theGpresent case, the post-mortem report establishes that the victim died asa result of septicemia caused by her burn injuries. Therefore, thestatement of the victim in the present case is indeed statement relevantas to the cause of her death and in regard to the circumstances whicheventually resulted in her death, as elaborated upon in the subsequentsegment.H

b.The statement of the deceased relates to the cause ofher death and the circumstances of the transaction whichresulted 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 aretherefore unable to give direct evidence) are relevant. Dying declarationsare made relevant under sub-clause (1) of Section 32:

“Cases in which statement of relevant fact by person who is deador cannot be found, etc., is relevant. –– Statements, written orverbal, of relevant facts made by person who is dead, orwho cannot be found, or who has become incapable of givingevidence, or whose attendance cannot be procured without anamount of delay or expense which under the circumstances ofthe case appears to the Court unreasonable, are themselvesrelevant facts in the following cases: ––

(1) When it relates to cause of death. –– When the statementis made by person as to the cause of his death, or as toany of the circumstances of the transaction which resultedin his death, in cases in which the cause of that person’sdeath comes into question.

Such statements are relevant whether the person who made themwas or was not, at the time when they were made, underexpectation of death, and whatever may be the nature of theproceeding 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 bythe 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 anamount of delay or expense.

AClause (1) indicates that in cases where the cause of person’sdeath comes into question, statement made by that person is relevantwhen it relates to:

a.the cause of death; or

b.any of the circumstances of the transaction which resultedBin death.

39. In the present case, the statement satisfies the conditions laiddown in sub-clause (1) of Section 32 as it relates to both, the cause ofdeath as well as to the circumstances of the transaction which resultedin death. This is because the statement clearly described that theCrespondent poured kerosene on her and set her on fire. The post-mortemreport concludes that the cause of death is septicemia caused by theburn injuries sustained by the deceased. The statement of the deceasedindicates that she sustained the burn injuries as result of the respondenthaving poured kerosene on her and setting her on fire.D

40. In addition, the statement of the deceased discloses that therespondent raped her before setting her on fire – this is description ofthe circumstances of the transaction which resulted in her death. Thestatement of the deceased, therefore, satisfies the conditions in Section32(1) and is itself relevant fact. It shall be considered to be dyingEdeclaration for the purpose of adjudicating this appeal.

c.The admissibility and probative value of the dyingdeclaration

41. There is no rule to the effect that dying declaration isinadmissible when it is recorded by police officer instead of aFMagistrate.[4] Although dying declaration ought to ideally be recordedby Magistrate if possible, it cannot be said that dying declarationsrecorded by police personnel are inadmissible for that reason alone. Theissue of whether dying declaration recorded by the police is admissiblemust be decided after considering the facts and circumstances of eachcase.G

42. In Khushal Rao v. State of Bombay,[5] this Court formulatedthe 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 481H5 AIR 1958 SC 22

“16. … (1) that it cannot be laid down as an absolute rule of lawthat dying declaration cannot form the sole basis of convictionunless it is corroborated;

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

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

(4) that dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light of surroundingcircumstances and with reference to the principles governing theweighing of evidence;

(5) that dying declaration which has been recorded by acompetent Magistrate in the proper manner, that is to say, in theform of questions and answers, and, as far as practicable, in thewords of the maker of the declaration, stands on much higherfooting than dying declaration which depends upon oral testimonywhich may suffer from all the infirmities of human memory andhuman character, and

(6) that in order to test the reliability of dying declaration, thecourt has to keep in view, the circumstances like the opportunityof the dying man for observation, for example, whether there wassufficient light if the crime was committed at night; whether thecapacity of the man to remember the facts stated, had not beenimpaired at the time he was making the statement, bycircumstances beyond his control; that the statement has beenconsistent throughout if he had several opportunities of making adying declaration apart from the official record of it; and that thestatement had been made at the earliest opportunity and was notthe result of tutoring by interested parties.”

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

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

Anot elaborate but consists of only few sentences and is in theactual words of the maker the mere fact that it is not in question-answer form cannot be ground against its acceptability orreliability.”

44. Indeed, as recognized by this Court in Surinder Kumar v.BState of Punjab[7] it may not always be possible to record dyingdeclarations in the form of questions and answers:

“19. Insofar as the case before us is concerned, we may onlynote that there is no format prescribed for recording dyingdeclaration. Indeed, no such format can be prescribed. Therefore,Cit is not obligatory that dying declaration should be recorded in aquestion-answer form. There may be occasions when it is possibleto do so and others when it may not be possible to do so eitherbecause of the prevailing situation or because of the pain andagony that the victim might be suffering at that point of time.”

D45. In its judgment, the High Court incorrectly observed that in hiscross-examination, Dr. RK Pandey stated that he was examining anotherpatient in the adjacent room when the victim’s dying declaration wasrecorded. The record of the cross-examination indicates that Dr. RKPandey stated that he was examining patient on the adjacent table (notin the adjacent room as erroneously stated by the High Court). The HighECourt mistakenly relied on this fact to hold that the victim’s statementcould not be treated as her dying declaration. Dr. RK Pandey’s answerto the question he was asked during cross-examination makes it clearthat the dying declaration cannot be rejected on the ground that he wasin another room when it was recorded – he was evidently in the sameFroom and the dying declaration was recorded by Lallan Prasad in hispresence. Both Lallan Prasad and Dr. RK Pandey have attested to thisfact during their examination(s).46. Dr. RK Pandey was also satisfied that the deceased wasphysically and mentally fit to make statement, and certified the sameGin writing. The dying declaration was recorded in the victim’s words andread out to her, after which she affixed her signature to it. We have noreason to believe that the statement was result of tutoring or that thedeceased was incapable of making statement. Nothing on the recordindicates that there was any enmity between the deceased and the

H7 (2012) 12 SCC 120

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

47. Further, Lallan Prasad was unable to remember whether thedeceased was admitted in the general ward or the ICU. This fact doesnot impeach the authenticity of the dying declaration because Dr. RKPandey has testified that it was recorded in his presence.

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

ii.The prosecution has proved its case against therespondent beyond reasonable doubt

49. The dying declaration makes it abundantly clear that therespondent raped the deceased, poured kerosene on her, and set her onfire. The cause of death was septicemia, which occurred as result ofthe burn injuries. Hence, the victim’s death was direct result of theinjuries inflicted upon her by the respondent. There is nothing on recordwhich gives rise to reasonable doubt as to the respondent’s guilt.

50. Learned counsel for the respondent has urged that the MedicalBoard did not find any evidence of rape and that the respondent istherefore not guilty of raping the deceased. The report prepared by theMedical Board stated that the possibility of intercourse could not beruled out although no definite opinion could be given in this regard. Alack of medical evidence as to the commission of rape cannot be takento mean that no rape was committed upon the deceased. Her dyingdeclaration unequivocally states that the respondent raped her beforesetting her on fire and there is no rule mandating the corroboration of thedying declaration through medical or other evidence, when the dyingdeclaration is not otherwise suspicious.

51. In Vishnu v. State of Maharashtra,[8] this Court held that amedical expert’s opinion is not conclusive as to the existence of anyfact:

“The opinion of the Medical Officer is to assist the court as he isnot witness of fact and the evidence given by the Medical Officeris really of an advisory character and not binding on the witnessof fact.”

8 (2006) 1 SCC 283

[2022] 13 S.C.R.

A52. In State of Uttar Pradesh v. Ram Sagar Yadav,[9] this Courtheld that there is neither rule of law nor rule of prudence that dyingdeclaration cannot be acted upon unless it is corroborated:

“13. It is well settled that, as matter of law, dying declarationcan be acted upon without corroboration. (See KhushalBRao v. State of Bombay [AIR 1958 SC 22 :1958 SCR 552 :1938Cri LJ 106] ; Harbans Singh v. State of Punjab [AIR 1962 SC439 : 1962 Supp (1) SCR 104 : (1962) 1 Cri LJ 479] ; Gopalsinghv. State of M.P. [(1972) 3 SCC 268 : 1972 SCC (Cri) 513 : 1972Cri LJ 1045] ) There is not even rule of prudence which hashardened into rule of law that dying declaration cannot beCacted upon unless it is corroborated. The primary effort of thecourt has to be to find out whether the dying declaration is true. Ifit is, no question of corroboration arises. It is only if thecircumstances surrounding the dying declaration are not clear orconvincing that the court may, for its assurance, look forDcorroboration to the dying declaration.”53. PW 1 – 5 and PW 10 (being the family members of thedeceased and other persons known to her) were declared hostile duringthe proceedings in the Sessions Court. It is common for witnesses toturn hostile after the death of the victim (or even prior to it) for varietyEof reasons. In Ramesh v. State of Haryana,[10] this Court noted some ofthe factors responsible for witnesses turning hostile:

“44. On the analysis of various cases, the following reasons canbe discerned which make witnesses retracting their statementsbefore the court and turning hostile:

F(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 552H10 (2017) 1 SCC 529

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

48. Apart from the above, another significant reason for witnessesturning hostile may be what is described as “culture ofcompromise”. Commenting upon such culture in rape trials,Pratiksha Bakshi [“Justice is 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 ofcompromise converts terror into bargain in context wherethere is no witness protection programme. This often accountsfor why prosecution witnesses routinely turn hostile by the timethe case comes on trial, if the victim does not lose the will to live.…””

54. In addition to these factors, witnesses who know the deceasedvictim may turn hostile because they wish to move on with their lives.Testifying as to the circumstances surrounding the rape and death of aloved one can be deeply traumatizing event, which is only compoundedby the slow pace of the criminal justice system.

55. That certain witnesses including the family members of thedeceased were declared hostile is insufficient to cast doubt upon theprosecution’s case. It was not the prosecution’s case that the hostilewitnesses were eye witnesses to the crime. Rather, these witnesses’testimonies were relevant mainly to show that the deceased consistentlystated that the respondent raped and murdered her, to different persons.The absence of evidence which establishes the consistency of the dyingdeclaration over period of time is not fatal to the prosecution’s case.As noted previously, the dying declaration was recorded in the victim’swords and read out to her, after which she affixed her signature on it.

56. Dhirendra Rai (DW 1) testified that false case had beeninstituted against the respondent but failed to provide convincing reasonfor his opinion. We are not persuaded that small disagreement regardingthe irrigation of land would prompt the deceased to falsify rape chargesagainst the respondent or lie about his having set her on fire, especiallywhen she was not party to the alleged disagreement about the irrigationof land.

A57. Dasrath Tiwary (DW 2) deposed that the deceased was unableto speak after she was burnt. This is patently false as established by thetestimonies of both Lallan Prasad and Dr. RK Pandey. Dr. RK Pandeycertified that the deceased was physically and mentally fit, and waspresent while her statement was recorded by Lallan Prasad. Dr. RKBPandey did not have any animus towards the respondent, nor has thedefence suggested that he did. He had no reason to give false testimonyregarding the victim’s health, or to give false certificate of fitness atthe time her statement was recorded.58. Balmukund Rai (DW 3) testified that the deceased was injuredCwhile cooking. We find this to be wholly unconvincing. Nothing emergesfrom the record which suggests that the deceased had any reason toconcoct story implicating the respondent. Further, nothing suggeststhat Balmukund Rai was present in the victim’s home when the supposedaccident took place. If he did witness the accident, it begs the questionof where he went when Dhirendra Rai supposedly entered the victim’sDhouse. The dying declaration has greater probative value than BalmukundRai’s testimony and we are inclined to accept the version of eventsnarrated in the former.

59. For these reasons, we find that the prosecution proved its

Ecase beyond reasonable doubt before the Sessions Court. The High Courtought not to have overturned the Sessions Court’s judgment for thereasons discussed previously. While this Court does not ordinarilyinterfere with orders of acquittal passed by High Courts, it may exerciseits power to do complete justice and reverse orders of acquittal to averta miscarriage of justice.[11] We therefore set aside the High Court’s decisionFdated 27 January 2018 and restore the Sessions Court’s judgment dated10 October 2006 convicting the respondent of offences punishable underSections 302, 341, 376 and 448 of the IPC, as well as its order dated 11October 2006 sentencing the respondent to rigorous imprisonment forlife for the offence punishable under Section 302 of the IPC and rigorousGimprisonment for 10 years for the offence punishable under Section 376of the IPC. These sentences are to run concurrently. The respondentshall 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 SCCH94

E. Parting remarks

60. While examining the victim, the Medical Board conductedwhat is known as the “two-finger test” to determine whether she washabituated to sexual intercourse. This Court has time and again deprecatedthe use of this regressive and invasive test in cases alleging rape andsexual assault. This so-called test has no scientific basis and neitherproves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is anaffront to their dignity. The “two-finger test” or pre vaginum test mustnot be conducted

61. In Lillu v. State of Haryana,[12] this Court held that the “two-finger test” violates the right to privacy, integrity, and dignity:

“13. … rape survivors are entitled to legal recourse that does notre-traumatise them or violate their physical or mental integrityand dignity. They are also entitled to medical procedures conductedin manner that respects their right to consent. Medicalprocedures should not be carried out in manner that constitutescruel, inhuman, or degrading treatment and health should be ofparamount consideration while dealing with gender-based violence.The State is under an obligation to make such services availableto survivors of sexual violence. Proper measures should be takento ensure their safety and there should be no arbitrary or unlawfulinterference with their privacy.

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

62. Whether woman is “habituated to sexual intercourse” or“habitual to sexual intercourse” is irrelevant for the purposes ofdetermining whether the ingredients of Section 375 of the IPC are presentin particular case. The so-called test is based on the incorrectassumption that sexually active woman cannot be raped. Nothing couldbe further from the truth – woman’s sexual history is wholly immaterialwhile adjudicating whether the accused raped her. Further, the probativevalue of woman’s testimony does not depend upon her sexual history.

AIt is patriarchal and sexist to suggest that woman cannot be believedwhen she states that she was raped, merely for the reason that she issexually active.

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

64. The Ministry of Health and Family Welfare issued guidelinesCfor health providers in cases of sexual violence.[13] These guidelinesproscribe the application of the “two-finger test”:

“Per-Vaginum examination commonly referred to by lay personsas ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearingon case of sexual violence. Per vaginum examination can beDdone only in adult women when medically indicated.

The status of hymen is irrelevant because the hymen can be torndue to several reasons such as cycling, riding or masturbationamong other things. An intact hymen does not rule out sexualviolence, and torn hymen does not prove previous sexualEintercourse. Hymen should therefore be treated like any otherpart of the genitals while documenting examination findings incases of sexual violence. Only those that are relevant to the episodeof assault (findings such as fresh tears, bleeding, edema etc.) areto be documented.”F65. Although the “two-finger test” in this case was conductedover decade ago, it is regrettable fact that it continues to be conductedeven today.

66. We direct the Union Government as well as the StateGovernments to:G

a.Ensure that the guidelines formulated by the Ministry ofHealth and Family Welfare are circulated to all governmentand private hospitals;

13 Ministry of Health and Family Welfare, Government of India, “Medico-legal care forHsurvivors / victims of sexual violence” (19 March 2014)

b.Conduct workshops for health providers to communicateAthe appropriate procedure to be adopted while examiningsurvivors of sexual assault and rape; and

c.Review the curriculum in medical schools with view toensuring that the “two-finger test” or per vaginumexamination is not prescribed as one of the procedures toBbe adopted while examining survivors of sexual assault andrape.

67. copy of this judgment shall be shared with the Secretary,Ministry of Health and Family Welfare, Government of India. TheSecretary, Ministry of Health and Family Welfare, Government of Indiashall transmit copies of this judgment to the Principal Secretary(Department of Public Health) of each state. The Principal Secretariesin the Departments of Health of each state shall also be responsible forensuring the implementation of the directions issued in Part of thisjudgment. The Secretaries in the Departments of Home of each stateshall in addition issue directions to the Directors General of Police in thisregard. The Directors General of Police shall, in turn, communicate thesedirections to the Superintendents of Police.

68. Any person who conducts the “two-finger test” or per vaginumexamination (while examining person alleged to have been subjectedto sexual assault) in contravention of the directions of this Court shallbe guilty of misconduct.

69. The appeal is allowed in the above terms.

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

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeal allowed.