State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai
Shreyas Ranjit
University Of Mumbai Law Academy
This Case Commentary is written by Shreyas Ranjit, a Fourth-Year Law Student of University Of Mumbai Law Academy
CITATION: 2019 SCC OnLine SC 2239
CASE NO: Criminal Appeal No.1441 of 2022
BENCH: Justice Hima Kohli and CJI D.Y.Chandrachud
JUDGMENT DATE: 31 October 2022
Introduction
In the State of Jharkhand v. Shailendra Kumar Rai, the Supreme Court issued a historic decision reiterating the prohibition on the contentious "two-finger test" in cases of sexual assault. This decision not only denounced the use of the two-finger test but also emphasized the need to protect and preserve the dignity and privacy of survivors of sexual violence. The issue was contested before Justices D.Y. Chandrachud and Hima Kohli, who found that such activities violated survivors' rights under Indian law and international conventions. According to a judgment issued on October 31, 2022, the two-finger test lacks scientific legitimacy and cannot be used to verify or reject rape charges. It has also been regarded as an assault on the victim's dignity.
This commentary moves from fact, principle, judgment, and implications of the case. It discusses whether the Supreme Court is reasonable or not in terms of judgment and how this judgment may affect the rights of survivors along with the practice of law in India.
Background and Facts of the Case
The incident for which the case was lodged occurred on November 7, 2004, in Narangi village of Jharkhand. Shailendra Kumar Rai entered the house of the victim, a minor girl, where he allegedly committed rape on her and then set her alight. As stated by the prosecution, after the crime, the accused threatened the victim that he would kill her if she created any hue and cry. The victim was lucky enough to be able to dial for help, and her relatives, plus a neighbour who heard the screams, rushed to rescue her. The accused ran off when the family put out the fire.
The victim was taken to Sadar Hospital in Deoghar where she had to undergo treatment for severe burn injuries. In the course of her treatment, in the very hospital, she made a dying declaration before the police naming the culprit who had raped her and tried to burn her alive. The hapless victim succumbed to her injuries on December 14, 2004, as borne out by the post-mortem report that had mentioned septicemia consequent to deep burn injuries as the cause of death.
After due investigation, an FIR was filed and the case was registered against the accused under various sections of the IPC, namely, sections 302 (homicide), 376 (rape), 341 (wrongful confinement), and 448 (trespass in the house). The Sessions Court sent the accused to life imprisonment. The judgment was, however, reversed at the appeal stage by the Jharkhand High Court, which found contradictions and discrepancies in the case as presented by the prosecution. This included the reliability of the dying declaration made by the victim, as well as the two-finger test result issued on the victim's body.
The case then travelled to the Supreme Court, with the central issues facing relating to the admissibility of the dying declaration and the legal as well as scientific validity of the two-finger test.
Issues
1. Does the statement made by the deceased qualify as a dying declaration under Section 32(1) of the Indian Evidence Act of 1872?
2. Has the prosecution established the accused's guilt beyond a reasonable doubt?
3. Is the two-finger test legitimate and relevant in assessing whether the victim was "habituated to sexual intercourse" and whether this has any influence on the rape allegation?
Arguments from Petitioner (State of Jharkhand)
• The petitioner stated that the victim's dying declaration was made willingly and in good mental and physical health, as attested by a medical practitioner. The declaration identified the accused, and the post-mortem report provided additional credence for its credibility.
•The petitioner stated that the High Court's reliance on the two-finger test was unscientific and violated the victim's right to dignity under Article 21 of the Constitution. The defence’s claim that the victim was "habituated to sexual intercourse" had no impact on whether the rape happened. The prosecution used corroborating medical evidence, the deathbed declaration, and witness testimony to prove the accused's guilt beyond a reasonable doubt.
Arguments from Respondent (Shailendra Kumar Rai)
· The defines argued that the dying declaration, recorded by a police officer rather than a magistrate, was unreliable and hence inadmissible. The respondent used the two-finger test to argue that the victim was "habituated to sexual intercourse," implying that the sexual act was consensual and thus the charge of rape was unfounded.
· They also cited contradictions in witness testimonies and claimed that the victim's relatives had become hostile. The defines argued that the prosecution failed to show guilt beyond a reasonable doubt, citing inconsistencies in the evidence and antagonism towards crucial witnesses.
Applicable Laws
Indian Penal Code, 1860 (IPC)
- Section 302 (Punishment for Murder): The accused was charged under Section 302 of the IPC with lighting fire to the victim, resulting in her death. Under this clause, murder is punishable by death or life in prison, as well as a fine.
- Section 376 (Punishment for Rape): The accused was charged with rape under Section 376. Rape is a penal offense under this law, with a minimum sentence of 10 years in prison, which can be increased to life, and a fine.
- Section 341 (Punishment for Wrongful Restraint): Wrongful confinement is punishable by up to one month of simple imprisonment or a ₹500 fine.
- Section 448 (Punishment for House Trespass): The accused was charged under Section 448 for trespassing into the victim's house with the intent to commit a crime. The punishment under this section is imprisonment for up to one year, or a fine, or both.
Indian Evidence Act, 1872
- Section 32(1) (Dying Declaration): This section states that comments made by a person regarding the cause of their death, or any of the events that contributed to their death, are admissible in evidence while the person's death is being investigated. In this case, the victim's dying declaration, which identified the accused as her assailant, was key evidence.
- Section 45 (Opinions of Experts): Medical professionals' opinions on the victim's condition and the cause of death were accepted under Section 45, which allows for expert opinions in cases requiring specialized expertise.
Constitution of India
- Article 21 (Right to Life and Personal Liberty): The two-finger test was found to violate Article 21, which guarantees the right to life with dignity. The Supreme Court ruled that such invasive tests compromise the dignity and bodily integrity of women, making them unconstitutional.
- Article 14 (Right to Equality): The Court also held that the two-finger test contravened Article 14, which guarantees equality before the law. The test is based on patriarchal and sexist assumptions, which discriminate against women by questioning their sexual history in rape cases.
Criminal Procedure Code, 1973 (CrPC)
- Section 154 (Information in Cognizable Cases): This section mandates the immediate filing of an FIR when information about a cognizable offense is received. In this case, an FIR was filed against the accused under various sections of the IPC.
- Section 164 (Recording of Confessions and Statements): The dying declaration of the victim was recorded under this section, which lays down the procedure for recording statements by a magistrate. However, the Court clarified that even when a police officer records the dying declaration, it remains admissible, provided it meets the requirements of voluntariness and mental fitness.
Admissibility of the Dying Declaration
Evidence Act, 1872, in section 32(1), any statement by a person from whom death is mortal as to the cause of what brought him by that cause, may be used in evidence against his killer. This would mean that everybody cannot lie when on their deathbed. The present case involves a dying declaration by the victim, which was recorded by the police officer, Lallan Prasad, at the hospital. This was made in the presence of Dr. R.K. Pandey, who certified that the deponent was mentally and physically fit to make the statement. The victim identified the accused as the person responsible for raping her and later burning her body.
The defence complained that the dying declaration was unreliable since the victim's family members, who were earlier witnesses in the case, turned hostile during the trial. They further said that the dying declaration, which was recorded by a police officer and not a magistrate, made it all the more doubtful.
The Supreme Court dismissed those grounds and ruled that the dying declaration was voluntary and supported by medical evidence, which establishes the point that the death was caused on account of burns inflicted upon the person by the assailant. The Court again held that there is no statutory provision that makes the record by a magistrate of the dying declaration compulsory. So long as the statement is made voluntarily and the declarant is in a fit state of mind to make it, it is admissible, the courts ruled.
The court of appeal observed that the inconsistencies between the versions of the testimony from the victim's family members did not rebut the dying declaration. Hostile witnesses are very common in sexual violence cases due to social pressure, as well as the effects that the fear of revenge or trauma has caused. The victim's statement was corroborated by the physical evidence that included the post-mortem report and the testimonies of medical professionals.
Prohibition of the Two-Finger Test
The two-finger test, or the "virginity test," is a procedure adopted in some medico-legal examination of rape cases intended to ascertain whether the victim is "habituated to sexual intercourse." It involves inserting fingers into the vagina to assess the laxity of the vaginal muscles and accordingly, infer the sexual history of the victim.
In this case, during the treatment of the victim, the Medical Board conducted the two-finger test. The report had suggested that she was "habituated to sexual intercourse." The defence argued that sexual acts might have been consensual based on this report. However, the Supreme Court rejected this outright when it claimed that the two-finger test is scientifically baseless and not relevant in determining whether rape has occurred. In referring to earlier judgments, such as Lillu v. State of Haryana[1], the judgment of 2013, it has been declared unconstitutional for use on a woman because the two-finger test violates a woman's right to privacy, dignity, and bodily integrity.
The Court further made it clear that the assumption under which the law moves that a sexually active woman cannot be raped bases itself on patriarchal and sexist assumptions. In construing a rape, Section 375 of the IPC neither refers to the sexual history of the woman concerned nor her "habitual" state as conferring or not conferring her consent. Rather, at what point she had consensualized the act at the relevant time is a question that should be answered, and not her previous sex life.
In this judgment, the Court has issued guidelines so that the two-finger test is completely done away with in medical practices. The guidelines issued by the Ministry of Health and Family Welfare in 2014 categorically mention that no such two-finger test can be performed, and accordingly, the Court directed the Union as well as the State Governments to carry this message of guidelines to every hospital. The Court further held that medical schools should update their curricula to completely remove any mention of the two-finger test, as its use stands for misconduct by doctors.
Judgment
The Supreme Court allowed the appeal set aside the acquittal recorded by the Jharkhand High Court, and restored the conviction delivered by the Sessions Court. It held that the dying declaration was admissible under Section 32(1) of the Indian Evidence Act and sufficiently reliable to convict the accused. The post-mortem report determined that the victim died due to septicemia caused by burn injuries, which were inflicted by the accused. Court thought that evidence given through the dying declaration along with medical reports proved beyond doubt that the accused was guilty of rape and murder.
In addition, the Court condemned the two-finger test in no equivocal terms. The judgment again stated that this test carries no scientific value and transgresses the victim's rights, as conferred under Articles 21 (right to life and dignity) and 14 (right to equality) of the Indian Constitution. The Court reiterated strict compliance with guidelines released by the Ministry of Health and Family Welfare declaring the two-finger test to be unacceptable procedures for examining survivors of sexual violation.
Analysis
This judgment by the Supreme Court in the State of Jharkhand v. Shailendra Kumar Rai marks a landmark in the judicial battle to guard the dignity and privacy of survivors of sexual violence. The reaffirmation through this judgment that the two-finger test had not been admissible would set a strong precedent against the use of outdated, invasive practices in the medico-legal examination.
This judgment resonates with the judgments rendered by the Court earlier, like in Lillu v. State of Haryana.[2] In response to the recommendations by Justice Verma Committee recommending the discontinuation of the two-finger test after the Nirbhaya case. The Court's policy for developing the right to privacy and dignity resonates with the ever-increasing acceptance that the legal process itself should not add to the trauma of survivors.
The Court's approach to the dying declaration further strengthens the evidentiary framework in sexual violence cases. It explicitly clarifies that if a declaration has been made by a person caused to die, even though recorded by a police officer, it would prove sufficient for conviction if its authenticity were established. This is quite essential because it would never be possible in such crimes to allow the victim to testify in court. Further, the judgment reminds us that the criminal justice system must be sensitive to the needs of survivors of sexual violence. The judgment especially at the hands of the Court has rightly criticized the two-finger test and, hence, emphasizes the need for
In dealing with survivors, utmost respect should be shown and allow for the medical examination to be carried out in a dignified manner. The court should, in actualizing the elimination of the two-finger test, direct the government to modify the medical curriculum and conduct workshops for medical professionals to ensure that survivors of rape receive the right and respectful treatment at the health facility.
Impact of the Judgment
This judgment is bound to radically transform the dealing with survivors of sexual violation at both legal and medical levels in India. The Court had washed out the loathsome, humiliating, and scientifically whimsical practice by strictly banning the two-finger test. This judgment empowers survivors by declarations of affirmations on the above said rights concerning privacy, dignity, and bodily integrity to be respected from all points of the legal procedure.
This will also catalyse important reforms in the treatment of survivors of sexual assault by government and medical institutions. The move toward eradicating the two-finger test as an integral part of a medical examination is a crucial step toward the development of the survivor-centric mechanism of justice.
Aside from the ramifications to medical practice, the judgment settles legal principles regarding dying declarations. The decision is that a valid dying declaration can be the main basis for conviction even without other corroborative evidence. This affirms the structure of evidence in sexual violence where, for instance, death or incapacitation could have prevented the victim's testimony before the court.
Conclusion
The Supreme Court landmark judgment in State of Jharkhand v. Shailendra Kumar Rai would undoubtedly establish the dignity, privacy, and rights of survivors of sexual violence. It definitely and categorically condemned the two-finger test and upheld the credibility of dying declarations. This ruling will leave a life-long impact on the state of survivors' treatment at the bar and in the hospital. It simply tells people that justice has to be survivor-friendly and that very outdated, invasive practices have no place in modern legal or medical procedures.
References
https://indiankanoon.org/doc/78844212/
https://indiankanoon.org/doc/196199017/
https://thelegalquorum.com/state-of-jharkhand-vs-shailendra-kumar-rai/
[1] Lillu v. State of Haryana Criminal Appeal No. 1226 Of 2011
[2] Lillu v. State of Haryana Criminal Appeal No. 1226 Of 2011