The State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai
DR. DHANANJAYA Y CHANDRACHUD, J.
Table of Contents*
A. Background....................................... ................................. 4
i. An overview of the testimonies of the witnesses
examined by the prosecution............................ ...........5
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..................................... .........9
f. Rekha Dasgupta, PW 7................................. .........10
g. Hostile witnesses..................................... ..............10
ii. An overview of the testimonies of the witnesses
examined by the defence................................ ...........11
a. Dhirendra Rai, DW 1..............................................11
b. Dasrath Tiwary, DW 2................................... ........11
c. Balmukund Rai, DW 3............................................11
*Ed. Note - Pagination in the Table of Contents is as per the Original Judgment.
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iii. The decision of the Sessions Court................ ...........12
iv. The High Court’s judgment on appeal.................... ..14
B. Issues........................................... .................................... 15
C. Submissions...................................... ................................ 16
D. Analysis......................................... ................................... 17
i. The statement of the deceased is relevant under
Section 32(1) of the Indian Evidence Act 1872.........17
a. The victim died due to the burn injuries sustained by
her................................................ .......................17
b. The statement of the deceased relates to the cause
of her death and the circumstances of the transaction
which resulted in her death.....................................20
c. The admissibility and probative value of the
dying declaration.............................................. ......22
ii. The prosecution has proved its case against
the respondent beyond reasonable doubt.................2 6
E. Parting remarks ................................................... ............30
1. This appeal arises from the judgment of the High Court of
Jharkhand dated 27 January 2018. The High Court allowed the appeal
by the respondent and set aside the order of conviction and, consequently,
of sentence passed by the Additional Sessions Judge, FTC-II Deoghar,
on 10 October 2006 and 11 October 2006 respectively. The Ses sions
Judge had convicted the respondent for offences punishab le under
Sections 302, 376, 341 and 448 of the Indian Penal Code 1860 1 and
sentenced him to suffer imprisonment for life.
A. Background
2. The case of the prosecution is that the respondent entered the
house of the victim and deceased in Narangi village, on the afternoon of
7 November 2004. It is alleged that he pushed her to the grou nd and
committed rape upon her, while threatening to kill her if she sounded an
1 “IPC”
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
alarm. She called out for help, at which point the respondent allegedly
poured kerosene on her and set her on fire with a matchstick. Her cries
for help led to her grandfather, mother , and a resident of the village to
come to her room. The respondent is alleged to have fled the scene
upon seeing them.
3. The victim’s family (along with the villager) extinguished the
fire and took her to Sadar Hospital, Deoghar, where she was admitted
and underwent treatment for the injuries sustained by her. The station
in-charge at PS Sarwna, received information regarding the incident
and travelled to Deoghar, where he recorded the victim’s ‘fard beyan’
on the same day (i.e., 7 November 2004). In her statement, she narrated
the incident as described in paragraph 2 above.
4. FIR No. 163 of 2004 was registered at PS Sarwna on the basis
of the statement of the victim and the investigation commenced. Lallan
Prasad was the IO and later, Suresh Yadav took over the investigation
from him. Upon the completion of the investigation, the IO 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 submis sion of a
supplementary charge-sheet against the respondent, with referenc e to
Section 302 of the IPC.
5. The respondent denied his guilt.
6. During the trial, the prosecution examined twelve witnesses in
support of its case and the defence examined three w itnesses. An
overview of their testimonies in chief- and cross-examination as well as
their status as witnesses follows.
i. An overview of the testimonies of the witnesses
examined 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 i ncident on 7
November 2004, upon which he travelled to Deoghar. He recorded the
victim’s statement at Sadar Hospital, Deoghar on the same day, in his
own handwriting, and read the contents of her declaration to her. Sh e
affixed her signature to the declaration in his presence, and he signed
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the declaration as well. Also in Lallan Prasad’s presence, the grand
father and mother of the victim and co-villager affixed their signatures
to the declaration and Dr. RK Pandey certified that the victim was fit to
make a statement and affixed his signature to the statement. Lallan
Prasad stated that Dr. RK Pandey was present when he record ed the
statement of the deceased.
8. Thereafter, he recorded the statements of Dr. RK Pandey, and
other witnesses. A senior nurse, Rekha Dasgupta, produced the victim’s
undergarments; Lallan Prasad took them into custody and prep ared a
seizure list recording the same.
9. The IO stated that he examined the scene of the crime and
found burnt clothes, an empty bottle of what seemed to be kerosene,
and dust in the veranda, where the crime is said to have oc curred. He
observed that the wall and the floor had burn marks. He seized the burnt
clothes and the empty bottle and prepared a seizure list. He also recorded
the 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 a requisition to
the CJM, Deoghar to record the statements of either the respondent or
the deceased. Further, he did not request the doctor on duty at the time
or the civil surgeon to record the victim’s statement. He stated that he
recorded her statement himself as her health was rapidly deteriorating.
11. He stated that he was unable to remember whether the victim
was admitted in the Intensive Care Unit or the general ward, as well as
the number of patients in the same ward. The IO testified that he did not
find a matchbox, kerosene lamp, lantern, or any other material w hich
could light a fire at the scene of the crime. He stated that he did not send
the empty bottle which he had seized from the scene of the c rime to a
laboratory because he was transferred soon after he seized it.
b. Dr. RK Pandey, PW 6
12. Dr. RK Pandey, a Medical Officer at Sadar Hospital, testified
that he examined the victim on 7 November 2004, when she was brought
to the hospital to treat her burn injuries. He certified that the deceased
was mentally and physically fit to make the statement. Dr. RK Pandey
was examining a patient on the table adjacent to the deceased when the
latter made her statement to Lallan Prasad.
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
c. Dr. Minu Mukherjee, PW 9
13. Dr. Minu Mukherjee, a Medical Officer at Sadar Hospital,
deposed that she was a member of the Medical Board constitut ed to
examine the victim when she was undergoing treatment for her injuries.
She testified that the Medical Board examined the de ceased on 7
November 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 th e
deceased;
c. A pathological report based on a vaginal smear revealed
that there was no spermatozoa (living or dead) in the pubic
region of the deceased;
d. A vaginal examination revealed that two fingers wer e
admitted easily; and
e. The deceased had 14 upper and lower teeth, which were
incomplete. The pubic symphysis was 40%. An X-ray of
her wrist indicated that she was below 17 years.
14. Based on their examination and findings, the Medical Board
was of the opinion that:
a. The deceased was about 16 years of age; and
b. The possibility of intercourse could not be ruled out although
no definite opinion could be given in this regard.
The Medical Board’s findings as well as its opinion was recorded
in a report prepared by Dr. Minu Mukherjee. The other members of the
Medical 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 spotted
up to 72 hours after intercourse and non-mobile sperm can be spotted up
to 7-10 days after intercourse. She further stated that the deceased may
have engaged in intercourse prior to date of the alleged crime, and that
the admission of two fingers in her vagina meant that she was habituated
to sexual intercourse. She also denied the defence’s suggestion that she
prepared the medical report because higher ranking officials pressurized
her to do so.
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d. Dr. R Mahto, PW 8
16. Dr. R Mahto, the Deputy Superintendent at Sadar Hospital ,
testified that he conducted a post-mortem examination on the body of
the deceased on 14 December 2004 and made the following findings:
a. The body had multiple ulcers scattered across it, with scabs
on the head, face and chest. These injuries were caused by
deep burns and were about six weeks old;
b. Various dissections revealed that the skull was intact, t he
brain matter was pale, the lungs were pale, the rig ht
chamber of the heart contained blood and the left chamber
was empty, the stomach and the urinary bladder were empty.
The liver, the spleen and the kidneys were congested.
17. Based on his findings, Dr. R Mahto concluded that the victim’s
death was caused by septicemia, which was a result of the deep burn
injuries sustained by the victim. He recorded his findings and opinion in
a post-mortem report.
18. In response to the questions posed to him during cross-
examination, he stated that those who suffer from s epticemia may
experience a change in their mental state, due to which they may be
irritable and unresponsive upon being asked any questions. He also stated
that the doctor who was treating the deceased referred her to the Bokaro
Burn Hospital.
e. Suresh Yadav, PW 12
19. Suresh Yadav, a police officer at PS Sarwna, deposed that he
took over the investigation of the case from Lallan P rasad on 18
November 2004. He submitted a charge-sheet under Section 173 of the
CrPC for offences under Sections 307, 341, 376 and 448 of the IP C.
When he learnt that the victim died on 14 December 2004, he went to
Sadar Hospital and prepared an inquest report under Section 174 of the
CrPC. Thereafter, he received the post-mortem report and submitted a
supplementary charge-sheet against the respondent, with referenc e to
Section 302 of the IPC.
f. Rekha Dasgupta, PW 7
20. Rekha Dasgupta, a nurse at Sadar Hospital, was a witness to
the seizure list prepared by Lallan Prasad when the underga rments of
the deceased were seized.
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
g. Hostile witnesses
21. The following witnesses initially supported the prosecution’s
case 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
f. Bal Krishna Ray, PW 10.
ii. An overview of the testimonies of the witnesses
examined by the defence
a. Dhirendra Rai, DW 1
22. Dhirendra Rai, a resident of Narangi village, deposed that a
false case had been instituted against the respondent and that one Kashi
Rai and the respondent had a disagreement concerning the irrigation of
certain land. He testified that he entered the house of the deceased and
saw that she was on fire but did not make an attempt to extinguish the
flames. According to him, none of the family members of the deceased
were present at the time.
23. In response to the questions posed to him during cross-
examination, he stated that he had not made a statement to the p olice
personnel who visited the village to investigate the crime.
b. Dasrath Tiwary, DW 2
24. Dasrath Tiwary, a resident of Narangi village, deposed that he
saw the deceased after she had sustained the burns, and tha t she was
not in a position to speak.
c. Balmukund Rai, DW 3
25. Balmukund Rai, a resident of Narangi village, testified that the
deceased sustained burns as a 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 Court
convicted the respondent of offences under Sections 302, 341, 376 and
1047
448 of the IPC. By its order dated 11 October 2006, the Sessions Court
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. These
sentences were directed to run concurrently. A separate sente nce was
not deemed to be required for the offences punishable under S ections
341 and 448 of the IPC.
27. The Sessions Court’s conviction was based on its appreciation
of the evidence on record as well as the position of the law, in the following
terms:
a. The defence’s averment that there was no certificate as to
the mental fitness of the declarant / deceased at the time of
recording the dying declaration was rejected because Dr.
RK Pandey had certified that the deceased was mentally
fit to make a statement;
b. The argument of the defence that the family members of
the deceased being declared hostile witnesses was fatal to
the prosecution’s case was not accepted because it was
not the prosecution’s case that the hostile witnesses were
eye witnesses to the incident complained of. Instead, the
hostile witnesses were sought to be examined to establish
that the deceased told her family members that the accused
raped her and set her on fire. The Sessions Court noted
that the hostile witnesses may have been persuaded not to
testify against the accused through bribes or because of
threats to their life or property. This fact alone would not
prove fatal to the prosecution’s case;
c. There is no bar to a police officer recording a d ying
declaration;
d. PW 11’s testimony that Dr. BK Pandey certified that the
deceased was mentally and physically fit instead of Dr. RK
Pandey (PW 6) was a typographical error. Hence, the
defence’s suggestion that a doctor named BK Pandey was
on duty at Sadar Hospital and that he refused to certify that
the deceased was physically and mentally fit to make a
statement was rejected;
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
e. Dr. RK Pandey’s testimony that the deceased was in agony
does not lead to the conclusion that she was not full y
conscious while making a statement to the IO;
f. Dr. Minu Mukherjee’s testimony that she did not find any
signs of rape does not conclusively answer the question of
whether the respondent raped the deceased. Opinions of
medical officers will not discredit witnesses of fact; and
g. The fact that the bottle seized from the place of the cr ime
was not sent for chemical analysis does not lead to the
conclusion that the respondent did not pour kerosene on
the deceased.
The Sessions Court concluded that the dying declaration was
voluntary, credible, and did not suffer from any infirmities. It therefore
held that the prosecution had proved its case beyond reasonable doubt,
and convicted the respondent of offences punishable under Sectio ns
302, 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 of
Jharkhand. By its judgment dated 27 January 2018, the High Court set
aside the judgment of the Sessions Court and acquitted the respondent,
for the following reasons:
a. The family members of the deceased were declared t o be
hostile witnesses;
b. Dr. RK Pandey stated in his examination-in-chief that the
dying declaration was recorded in his presence. However,
he contradicted himself during the cross-examination, where
he stated that he was with another patient in a roo m
adjacent to the one in which the deceased was being treated.
Hence, the dying declaration was not recorded in his
presence;
c. In response to a question posed to him during cro ss-
examination, Dr. R Mahto stated that the victim’s family
had received advice that the victim ought to be taken to
Bokaro Burn Hospital for better treatment but they did not
do so;
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d. The statement made by the deceased is not admissible as a
dying declaration due to the decision in Moti Singh v. State
of Uttar Pradesh;2 and
e. Dr. Minu Mukherjee (PW 9) did not find any sign of sexual
intercourse when she examined the victim.
For these reasons, the High Court held that the prosecution had
failed to prove the charges against the respondent beyond reasonable
doubt. The appellant invoked the jurisdiction of this Court under Article
136 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 on
behalf of the parties, two questions arise for determination:
a. Whether the statement of the deceased is relevant under
Section 32(1) of the Indian Evidence Act 1872;3 and
b. Whether the prosecution has proved the charges against
the 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 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;
and
b. The post-mortem examination of the deceased was
conducted within 12 hours of the time of death. The post-
mortem report concluded that the cause of death was
septicemia due to the burn injuries sustained by her.
31. The submissions urged on behalf of the appellant have been
opposed by the respondent, whose counsel Mr. Braj Kishore Mish ra
made the following submissions:
2 AIR 1964 SC 900
3 “Evidence Act”
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
a. Although the dying declaration indicates that the respondent
raped the deceased, the Medical Board’s report stated that
no definite opinion could be given in this regard. There is no
evidence other than the dying declaration to show that the
respondent raped the deceased; and
b. The victim died around a month after the occurrence of the
incident complained of. The statement made by the
deceased to the IO is therefore not a dying declaration.
D. Analysis
i. The statement of the deceased is relevant under
Section 32(1) of the Indian Evidence Act 1872
a. The victim died due to the burn injuries sustained by
her
32. The post-mortem report prepared by Dr. R Mahto (PW 8)
states that the cause of death of the victim was septicemia, which was
a result of the burn injuries sustained by the victim. The defence has
sought to assail the veracity of this finding.
33. In response to a question posed to him during cross-examination,
Dr. R Mahto stated that he distinctly remembered that the doctor who
was treating the deceased referred her to Bokaro Burn Hospital. However,
she was not shifted to this hospital. The unnamed doctor who supposedly
referred the deceased to Bokaro Burn Hospital was not named a s a
witness in the proceedings before the Sessions Judge and was not called
to depose in evidence. Counsel appearing for respon dent in the
proceedings before the High Court argued that the fact that the deceased
was not shifted to Bokaro Burn Hospital was an intervening circumstance.
He urged that consequently, it was not proved that the deceased di ed
because of her burn injuries. The suggestion appears to be that the death
of the victim could have been prevented if the advice supposedly given
by 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 Court
accepted this argument and held that the statement of the deceased
could not be treated as a dying declaration since the cause of death was
not established.
34. Dr. R Mahto’s statement that another doctor referred t he
deceased to Bokaro Burn Hospital is relied upon to urge that such a
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reference did indeed take place, and that it was ignored. Counsel for the
defence 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 to
be 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 was
treated at Bokaro Burn Hospital instead of Sadar Hospital.
Dr. R Mahto’s testimony (only to the limited extend that he seeks
to testify as to the opinion of another doctor who supposedly referred
the deceased to Bokaro Burn Hospital) is inadmissible in view of Section
60 of the Evidence Act. Section 60 stipulates that oral evidence must be
direct:
“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 t hat
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 tre atise
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 existe nce or
condition of any material thing other than a document, the Court
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
may, if it thinks fit, require the production of such material thing
for its inspection.”
(emphasis supplied)
35. Here, the fact that an unnamed doctor referred the deceased
to Bokaro Burn Hospital was sought to be established indire ctly. The
unnamed doctor’s opinion as to the best course of treatment for the
deceased was sought to be brought out through Dr. R Mahto’s cross -
examination. This is impermissible due to the interdict in Section 60 of
the Evidence Act, in terms of which any oral evidence which refers to
an opinion must be the evidence of the person who holds that opinion.
His testimony (as to the limited point on whether the victim was referred
to Bokaro Burn Hospital by another doctor) is therefore inadmissible
and would amount to hearsay. However, his testimony in his examination-
in-chief as well as his other answers during the cross-examination are
not vitiated. His testimony refers to his own opinion and the grounds on
which he holds it. The remaining portion of his testimony, including on
the cause of death of the victim, is no doubt admissible. Dr. R Mahto’s
testimony is clear that the cause of death is septicem ia caused by the
burn 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 s tatement was
inadmissible as a dying declaration. In that case, the accused was alleged
to have shot the victim. The victim was admitted to the hospital, treated
for his injuries, and discharged thereafter. He died a few w eeks after
having sustained the gunshot wounds and he was cremated before a
post-mortem examination could be conducted. This Court held that there
was no evidence on record as to the cause of death of the victim.
Consequently, his statement was not considered a statement as t o the
cause of his death or any of the circumstances of the transaction which
resulted in his death, under Section 32(1) of the Evidence Act. The High
Court’s reliance on Moti Singh (supra) is misplaced because in the
present case, the post-mortem report establishes that the victim died as
a result of septicemia caused by her burn injuries. Therefore, the
statement of the victim in the present case is indeed a statement relevant
as to the cause of her death and in regard to the circum stances which
eventually resulted in her death, as elaborated upon in the sub sequent
segment.
1053
b. The statement of the deceased relates to the cause of
her death and the circumstances of the transaction which
resulted in her death
37. Section 32 of the Evidence Act provides that in certain cases,
statements by persons who cannot be called as witne sses (and are
therefore unable to give direct evidence) are relevant. Dying declarations
are made relevant under sub-clause (1) of Section 32:
“Cases in which statement of relevant fact by person who is dead
or cannot be found, etc., is relevant. –– Statements, written or
verbal, of relevant facts made by a person who is dead , or
who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an
amount of delay or expense which under the circumstances of
the case appears to the Court unreasonable, are themselves
relevant facts in the following cases : ––
(1) When it relates to cause of death. –– 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 resul ted
in his death, in cases in which the cause of that per son’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, un der
expectation of death, and whatever may be the nature of t he
proceeding in which the cause of his death comes into question.
…”
(emphasis supplied)
38. In terms of Section 32, statements (either written or ve rbal)
of relevant facts are themselves relevant facts when they are made by
the 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 an
amount of delay or expense.
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
Clause (1) indicates that in cases where the cause of a per son’s
death comes into question, a statement made by that person is relevant
when it relates to:
a. the cause of death; or
b. any of the circumstances of the transaction which resulte d
in death.
39. In the present case, the statement satisfies the conditions laid
down in sub-clause (1) of Section 32 as it relates to both, the cause of
death as well as to the circumstances of the transaction which resulted
in death. This is because the statement clearly des cribed that the
respondent poured kerosene on her and set her on fire. The post-mortem
report concludes that the cause of death is septicemia caused by the
burn injuries sustained by the deceased. The statement of the deceased
indicates that she sustained the burn injuries as a result of the respondent
having poured kerosene on her and setting her on fire.
40. In addition, the statement of the deceased discloses that the
respondent raped her before setting her on fire – this is a description of
the circumstances of the transaction which resulted in her death. The
statement of the deceased, therefore, satisfies the conditions in Section
32(1) and is itself a relevant fact. It shall be considered t o be a dying
declaration for the purpose of adjudicating this appeal.
c. The admissibility and probative value of the dyin g
declaration
41. There is no rule to the effect that a dying declar ation is
inadmissible when it is recorded by a police office r instead of a
Magistrate.4 Although a dying declaration ought to ideally be recorded
by a Magistrate if possible, it cannot be said that dyi ng declarations
recorded by police personnel are inadmissible for that reason alone. The
issue of whether a dying declaration recorded by the police is admissible
must be decided after considering the facts and circumstances of each
case.
42. In Khushal Rao v. State of Bombay,5 this Court formulated
the 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 481
5 AIR 1958 SC 22
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“16. … (1) that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of conviction
unless it is corroborated;
(2) that each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was made;
(3) that it cannot be laid down as a general proposit ion that a
dying declaration is a weaker kind of evidence than other pieces
of evidence;
(4) that a dying declaration stands on the same footing as another
piece of evidence and has to be judged in the light of surrounding
circumstances and with reference to the principles governing the
weighing of evidence;
(5) that a dying declaration which has been recorde d by a
competent Magistrate in the proper manner, that is to say, in the
form of questions and answers, and, as far as practicable, in the
words of the maker of the declaration, stands on a much highe r
footing than a dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human memory and
human character, and
(6) that in order to test the reliability of a dying declaration, the
court has to keep in view, the circumstances like the opportunity
of the dying man for observation, for example, whether there was
sufficient light if the crime was committed at night; whether the
capacity of the man to remember the facts stated, had not been
impaired at the time he was making the statement, b y
circumstances beyond his control; that the statement has be en
consistent throughout if he had several opportunities of making a
dying declaration apart from the official record of it; and that the
statement had been made at the earliest opportunity and was not
the result of tutoring by interested parties.”
43. The fact that the dying declaration is not in the f orm of
questions and answers does not impact either its admissibil ity or its
probative value, as held in Ram Bihari Yadav v. State of Bihar:6
“9. … Generally, the dying declaration ought to be recorde d in
the form of questions and answers but if a dying declaratio n is
6 (1998) 4 SCC 517
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
not elaborate but consists of only a few sentences and is in t he
actual words of the maker the mere fact that it is not in question-
answer form cannot be a ground against its acceptabil ity or
reliability.”
44. Indeed, as recognized by this Court in Surinder Kumar v.
State of Punjab 7 it may not always be possible to record dying
declarations in the form of questions and answers:
“19. Insofar as the case before us is concerned, we may only
note that there is no format prescribed for recording a dying
declaration. Indeed, no such format can be prescribed. Therefore,
it is not obligatory that a dying declaration should be recorded in a
question-answer form. There may be occasions when it is possible
to do so and others when it may not be possible to do so eith er
because of the prevailing situation or because of the pai n and
agony that the victim might be suffering at that point of time.”
45. In its judgment, the High Court 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 declar ation was
recorded. The record of the cross-examination indicates that Dr. R K
Pandey stated that he was examining a patient on the adjacent table (not
in the adjacent room as erroneously stated by the High Court). The High
Court 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 makes it clear
that the dying declaration cannot be rejected on the ground that he was
in another room when it was recorded – he was evidently in th e same
room and the dying declaration was recorded by Lallan Prasad in his
presence. Both Lallan Prasad and Dr. RK Pandey have attested to this
fact during their examination(s).
46. 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. We have no
reason to believe that the statement was a result of tutoring or that the
deceased was incapable of making a statement. Nothing on the record
indicates that there was any enmity between the decea sed and the
7 (2012) 12 SCC 120
1057
respondent, which would lead the deceased to narrate an untrue account
of events and falsely implicate the respondent.
47. Further, Lallan Prasad was unable to remember whether the
deceased was admitted in the general ward or the ICU. This fact does
not impeach the authenticity of the dying declaration because Dr. RK
Pandey has testified that it was recorded in his presence.
48. We are therefore satisfied that the dying declaration was made
voluntarily and is true. The deceased was in a competent state of mind
when she made a statement to Lallan Prasad.
ii. The prosecution has proved its case against the
respondent beyond reasonable doubt
49. The dying declaration makes it abundantly clear that the
respondent raped the deceased, poured kerosene on her, and set her on
fire. The cause of death was septicemia, which occurred as a result of
the burn injuries. Hence, the victim’s death was a direc t result of the
injuries inflicted upon her by the respondent. There is nothing on record
which gives rise to reasonable doubt as to the respondent’s guilt.
50. Learned counsel for the respondent has urged that the Medical
Board did not find any evidence of rape and that the respondent is
therefore not guilty of raping the deceased. 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. A
lack of medical evidence as to the commission of rape cannot be taken
to mean that no rape was committed upon the deceased. Her dy ing
declaration unequivocally states that the respondent raped her before
setting her on fire and there is no rule mandating the corroboration of the
dying declaration through medical or other evidence, when the dyi ng
declaration is not otherwise suspicious.
51. In Vishnu v. State of Maharashtra,8 this Court held that a
medical expert’s opinion is not conclusive as to the existenc e 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.”
8 (2006) 1 SCC 283
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
52. In State of Uttar Pradesh v. Ram Sagar Yadav,9 this Court
held that there is neither a rule of law nor a rule of prudence that a dying
declaration cannot be acted upon unless it is corroborated:
“13. It is well settled that, as a matter of law, a dying declaration
can be acted upon without corroboration. (See Khushal
Rao v. State of Bombay [AIR 1958 SC 22 :1958 SCR 552 :1938
Cri LJ 106] ; Harbans Singh v. State of Punjab [AIR 1962 SC
439 : 1962 Supp (1) SCR 104 : (1962) 1 Cri LJ 479] ; Gopalsingh
v. State of M.P. [(1972) 3 SCC 268 : 1972 SCC (Cri) 513 : 1972
Cri LJ 1045] ) There is not even a rule of prudence which has
hardened into a rule of law that a dying declaration cannot be
acted upon unless it is corroborated. The primary effort of the
court has to be to find out whether the dying declaration is true. If
it is, no question of corroboration arises. It is o nly if the
circumstances surrounding the dying declaration are not clear or
convincing that the court may, for its assurance, l ook for
corroboration to the dying declaration.”
53. PW 1 – 5 and PW 10 (being the family members of the
deceased and other persons known to her) were declared hostile during
the proceedings in the Sessions Court. It is common for witnes ses to
turn hostile after the death of the victim (or even prior to it) for a variety
of reasons. In Ramesh v. State of Haryana,10 this Court noted some of
the factors responsible for witnesses turning hostile:
“44. On the analysis of various cases, the following reasons can
be discerned which make witnesses retracting their statem ents
before the court and turning hostile:
(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 552
10 (2017) 1 SCC 529
1059
(vii) Non-existence of any clear-cut legislation to check hostility
of witness.
…
48. Apart from the above, another significant reason for witnesses
turning hostile may be what is described as “cultur e of
compromise”. Commenting upon such culture in rape tr ials,
Pratiksha Bakshi [“Justice is a 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 categor y of
compromise converts terror into a bargain in a context where
there is no witness protection programme. This often a ccounts
for why prosecution witnesses routinely turn hostile by the time
the case comes on trial, if the victim does not lose the will to live.
…””
54. In addition to these factors, witnesses who know the deceased
victim may turn hostile because they wish to move on with their lives.
Testifying as to the circumstances surrounding the rape and death of a
loved one can be a deeply traumatizing event, which is only compounded
by the slow pace of the criminal justice system.
55. That certain witnesses including the family members of the
deceased were declared hostile is insufficient to cast doubt upon the
prosecution’s case. It was not the prosecution’s case that t he hostile
witnesses were eye witnesses to the crime. Rather, these wit nesses’
testimonies were relevant mainly to show that the deceased consistently
stated that the respondent raped and murdered her, to different persons.
The absence of evidence which establishes the consistency of the dying
declaration over a period of time is not fatal to the prosecution’s case.
As noted previously, the dying declaration was recorded in the victim’s
words and read out to her, after which she affixed her signature on it.
56. Dhirendra Rai (DW 1) testified that a false case had b een
instituted against the respondent but failed to provide a convincing reason
for his opinion. We are not persuaded that a small disagreement regarding
the irrigation of land would prompt the deceased to falsify rape charges
against the respondent or lie about his having set her on fire, especially
when she was not party to the alleged disagreement about the irrigation
of land.
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
57. Dasrath Tiwary (DW 2) deposed that the deceased was unable
to speak after she was burnt. This is patently false as established by the
testimonies of both Lallan Prasad and Dr. RK Pandey. Dr. RK Pandey
certified that the deceased was physically and mentally f it, and was
present while her statement was recorded by Lallan Prasa d. Dr. RK
Pandey did not have any animus towards the respondent, nor has the
defence suggested that he did. He had no reason to give false testimony
regarding the victim’s health, or to give a false certificate of fitness at
the time her statement was recorded.
58. Balmukund Rai (DW 3) testified that the deceased was injured
while cooking. We find this to be wholly unconvincing. Nothing emerges
from the record which suggests that the deceased had any reason to
concoct a story implicating the respondent. Further, nothing sugg ests
that Balmukund Rai was present in the victim’s home when the supposed
accident took place. If he did witness the accident, it begs the question
of where he went when Dhirendra Rai supposedly entered the victim’s
house. The dying declaration has greater probative value than Balmukund
Rai’s testimony and we are inclined to accept the versio n of events
narrated in the former.
59. For these reasons, we find that the prosecution proved its
case beyond reasonable doubt before the Sessions Court. The High Court
ought not to have overturned the Sessions Court’s judgment for the
reasons discussed previously. While this Court does no t ordinarily
interfere with orders of acquittal passed by High Courts, it may exercise
its power to do complete justice and reverse orders of acquittal to avert
a miscarriage of justice.11 We therefore set aside the High Court’s decision
dated 27 January 2018 and restore the Sessions Court’s judgment dated
10 October 2006 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. These sentences are to run concurrently. The respondent
shall 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 SCC
94
1061
E. Parting remarks
60. While examining the victim, the Medical Board conducted
what is known as the “two-finger test” to determine whet her she was
habituated to sexual intercourse. This Court has time and again deprecated
the use of this regressive and invasive test in cases al leging rape and
sexual assault. This so-called test has no scientific basis and neither
proves nor disproves allegations of rape. It instead re-victimizes and re-
traumatizes women who may have been sexually assaulted, and i s an
affront to their dignity. The “two-finger test” or pre vaginum test must
not 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 not
re-traumatise them or violate their physical or mental int egrity
and dignity. They are also entitled to medical procedures conducted
in a manner that respects their right to consent. M edical
procedures should not be carried out in a manner that constitutes
cruel, inhuman, or degrading treatment and health should be o f
paramount consideration while dealing with gender-based violence.
The State is under an obligation to make such services available
to survivors of sexual violence. Proper measures should be taken
to ensure their safety and there should be no arbitrary or unlawful
interference with their privacy.
14. Thus, in view of the above, undoubtedly, the two-finger test
and its interpretation violates the right of rape survivors to privacy,
physical and mental integrity and dignity.”
62. Whether a woman is “habituated to sexual intercourse” or
“habitual to sexual intercourse” is irrelevant for the purposes of
determining whether the ingredients of Section 375 of the IPC are present
in a particular case. The so-called test is based o n the incorrect
assumption that a sexually active woman cannot be raped. Nothing could
be further from the truth – a woman’s sexual history is wholly immaterial
while adjudicating whether the accused raped her. Further, the probative
value of a woman’s testimony does not depend upon her sexual history.
12 (2013) 14 SCC 643
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]
It is patriarchal and sexist to suggest that a woman cannot be believed
when she states that she was raped, merely for the reason that she is
sexually active.
63. The legislature explicitly recognized this fact when it enacted
the Criminal Law (Amendment) Act 2013 which inter alia amended
the Evidence Act to insert Section 53A. In terms of Section 53A of the
Evidence Act, evidence of a victim’s character or of her previous sexual
experience with any person shall not be relevant to the issue of consent
or the quality of consent, in prosecutions of sexual offences.
64. The Ministry of Health and Family Welfare issued guidelines
for health providers in cases of sexual violence. 13 These guidelines
proscribe the application of the “two-finger test”:
“Per-Vaginum examination commonly referred to by lay persons
as ‘two-finger test’, must not be conducted for establishing rape/
sexual violence and the size of the vaginal introitus has no bearing
on a case of sexual violence. Per vaginum examination can be
done only in adult women when medically indicated.
The status of hymen is irrelevant because the hymen can be torn
due to several reasons such as cycling, riding or masturbat ion
among other things. An intact hymen does not rule out sexual
violence, and a torn hymen does not prove previous se xual
intercourse. Hymen should therefore be treated like any other
part of the genitals while documenting examination findings in
cases of sexual violence. Only those that are relevant to the episode
of assault (findings such as fresh tears, bleeding, edema etc.) are
to be documented.”
65. Although the “two-finger test” in this case was conducted
over a decade ago, it is a regrettable fact that it continues to be conducted
even today.
66. We direct the Union Government as well as the S tate
Governments to:
a. Ensure that the guidelines formulated by the Ministry of
Health and Family Welfare are circulated to all government
and private hospitals;
13 Ministry of Health and Family Welfare, Government of India, “Medico-legal care for
survivors / victims of sexual violence” (19 March 2014)
1063
b. Conduct workshops for health providers to communicate
the appropriate procedure to be adopted while examining
survivors of sexual assault and rape; and
c. Review the curriculum in medical schools with a view to
ensuring that the “two-finger test” or per vaginum
examination is not prescribed as one of the procedures to
be adopted while examining survivors of sexual assault and
rape.
67. A copy of this judgment shall be shared with the Secreta ry,
Ministry of Health and Family Welfare, Government of Indi a. The
Secretary, Ministry of Health and Family Welfare, Government of India
shall transmit copies of this judgment to the Princ ipal Secretary
(Department of Public Health) of each state. The Principal Secretaries
in the Departments of Health of each state shall also be responsible for
ensuring the implementation of the directions issued in Part E of this
judgment. The Secretaries in the Departments of Home of eac h state
shall in addition issue directions to the Directors General of Police in this
regard. The Directors General of Police shall, in turn, communicate these
directions to the Superintendents of Police.
68. Any person who conducts the “two-finger test” or per vaginum
examination (while examining a person alleged to have been subjected
to a sexual assault) in contravention of the directions of this Court shall
be guilty of misconduct.
69. The appeal is allowed in the above terms.
70. Pending application(s), if any, stand disposed of.
Divya Pandey Appeal allowed.
(Assisted by : Deepak Panwar, LCRA)
THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI
@ PANDAV RAI [DR. DHANANJAYA Y CHANDRACHUD, J.]