Summary
A 16-year-old girl told the police in hospital that the accused had raped her and set her on fire with kerosene. The statement was recorded with a doctor present who certified her fit. She died of septicaemia from the burns five weeks later. The Jharkhand High Court acquitted him. The Supreme Court restored his conviction for murder and rape and his life sentence. The statement was a dying declaration under Section 32(1), since the post-mortem linked the death to the burns. The claim that she had been referred to another hospital was inadmissible hearsay under Section 60. A truthful dying declaration needs no corroboration, and the lack of medical proof of rape and the hostility of relatives did not undermine it. The Court condemned the "two-finger test" as unscientific and degrading and directed that anyone conducting it is guilty of misconduct.
Issues
- Whether the victim's statement to the police, made five weeks before she died of septicaemia from burn injuries, was relevant as a dying declaration under Section 32(1) of the Evidence Act and could found a conviction without corroboration.
- Whether the 'two-finger test' may be used in examining survivors of sexual assault.
Provisions considered
- Section 32(1), Indian Evidence Act, 1872The statement related both to the cause of death and to the circumstances of the transaction resulting in it, as the post-mortem proved death by septicaemia from the burns she described. (¶¶ 37, 38, 39, 40)
- Section 60, Indian Evidence Act, 1872The post-mortem doctor's account of another, unexamined doctor's referral of the victim to a burns hospital was hearsay and inadmissible, though his own opinion on the cause of death stood. (¶¶ 34, 35)
- Section 53A, Indian Evidence Act, 1872Evidence of a victim's character or previous sexual experience is irrelevant to consent, underscoring that the two-finger test has no legal relevance. (¶¶ 62, 63)
- Sections 302, 376, 341 and 448, Indian Penal Code, 1860The Sessions Court's convictions and concurrent sentences of life imprisonment and ten years were restored. (¶¶ 26, 59)
Held
- The High Court wrongly relied on Moti Singh, where there was no evidence of the cause of death; here the post-mortem established death by septicaemia from the burns, so the statement was a relevant dying declaration. (¶¶ 32, 35, 36)
- A dying declaration recorded by a police officer is not inadmissible for that reason, nor for not being in question-and-answer form; this one was recorded in her words with the doctor present at the adjacent table certifying fitness, was read over and signed, and was voluntary and true. (¶¶ 41, 43, 44, 45, 46, 48)
- A truthful dying declaration needs no corroboration; lack of medical evidence of rape does not mean no rape occurred, medical opinion is advisory, and hostile relatives who were not eyewitnesses did not weaken the prosecution, while the defence witnesses were unconvincing. (¶¶ 50, 51, 52, 55, 56, 57, 58)
- The two-finger test is unscientific, re-traumatises survivors and violates their dignity and privacy; a woman's sexual history is wholly immaterial to whether she was raped. (¶¶ 60, 61, 62, 64, 65)
Result
Appeal allowed; the High Court's acquittal set aside and the Sessions Court's conviction under Sections 302, 341, 376 and 448 IPC and concurrent sentences restored, the respondent to be taken into custody; the Union and States directed to circulate the health ministry's guidelines, hold workshops and revise medical curricula, and conducting the two-finger test declared misconduct.