INTRODUCTION
Rape is a crime against women and humanity. It is a type of sexual assault that involves sexual intercourse against a person without his/her consent. It leaves victims in a lifetime of physical, emotional, and psychological trauma. To check whether the victim was sexually active or not, the two-finger test was conducted. It represents the patriarchal thinking of society that if the victim was sexually active that means rape cannot be committed.
FACTS OF THE CASE
Respondent raped the victim and the deceased by entering the house in Narangi village on 7th November 2004. He threatened to kill her. When the victim cried out for assistance, the respondent doused her body in kerosene and set it ablaze. The respondent went away when he noticed her family. The fire was extinguished by the victim’s family who admitted her to the Sadar Hospital. The victim’s health was deteriorating with time. While examination of the victim’s injuries, the two-finger test was also conducted. For offenses under Sections 307[1], 341[2], 376[3], and 448[4] of the IPC, the charge sheet required by Section 173[5] of the CrPC was submitted. On December 14, 2004, the victim passed away at Sadar Hospital. The respondent was given a severe life sentence by the Session Court for the offense under Section 302[6] of the IPC and a severe ten-year sentence for the offense under Section 376[7] of the IPC. The two sentences were intended to follow one another. As a result of this judgment, the respondent appealed at the High Court of Jharkhand. The Court invoked the judgment of the Session Court under the jurisdiction of Article 136[8] of the Indian Constitution.
ISSUES
- Whether Section 32(1)[9] of the Indian Evidence Act of 1872 considers the decedent’s statement to be relevant?
- Whether the prosecution has established beyond a reasonable doubt the respondent’s guilt about the accusations?
CONTENTIONS & JUDGMENT
The contentions from the side of the appellant were the deceased’s post-mortem examination was carried out within 12 hours of the time of death, and Dr. RK Pandey was attending to a patient on the table right next to them, not a patient in a room next to where they were sitting. These facts were not correctly understood by the High Court. Because of her burn injuries, septicemia was determined to be the cause of death in the post-mortem report.
These were opposed by the respondent contending that no solid judgment could be made in this area, according to the Medical Board’s report, notwithstanding the deathbed declaration indicating that the respondent raped the deceased. The dying declaration is the only piece of proof that the respondent sexually assaulted the deceased, and the victim passed away about a month after the alleged incident. Therefore, the deceased’s statement to the IO is not a deathbed declaration.
- Section 32(1) of the Indian Evidence Act[10] of 1872 considers the decedent’s statement to be relevant
According to the post-mortem report made by Dr. R. Mahto, the deceased died from septicemia, which was brought on by the burns the sufferer had sustained. The victim’s comment was invalid as a dying statement, the High Court reasoned based on this Court’s ruling in Moti Singh and Another v State of Uttar Pradesh[11]. In that situation, it was claimed that the accused had shot the victim. The sufferer was taken into the hospital, given medical attention for his wounds, and then released. He was cremated before a post-mortem examination could be conducted after passing away a few weeks after suffering the bullet wounds.
According to this Court, there was no evidence in the file regarding the victim’s cause of death. As a result, under Section 32(1)[12] of the Evidence Act, his comment was not regarded as a declaration about the reason for his passing or any other aspect of the event that led to it. The post-mortem report in this instance reveals that the victim passed away from septicemia brought on by her burn injuries; hence the High Court’s reliance on Moti Singh and Another v. State of Uttar Pradesh[13] is inappropriate. Therefore, as detailed in greater detail in the segment that follows, the victim’s statement, in this case, is indeed pertinent to the events leading up to her death and the reason why she died.
According to the post-mortem report, the deceased’s burn injuries led to septicemia, which is what ultimately led to his or her demise. According to the deceased’s statement, the respondent doused her in kerosene and lit her ablaze, causing her to suffer burn injuries. In addition, the deceased’s account reveals that the respondent sexually assaulted her before setting her ablaze. As a result, the statement of the dead meets the requirements of Section 32(1)[14] and constitutes a relevant fact in and of it. To decide this appeal, it shall be deemed a dying declaration.
- The prosecution has established beyond a reasonable doubt the respondent’s guilt concerning the accusations
It is clear from the dying declaration that the respondent sexually assaulted the victim before dousing him in kerosene and setting him on fire. Septicemia, brought on by the burn wounds, was what ultimately killed the patient. The victim’s injuries caused by the respondent were thus a direct cause of the victim’s death. There is no evidence in the file that may raise a question about the respondent’s guilt.
The High Court shouldn’t have reversed the Sessions Court’s decision. Despite the fact that this Court frequently leaves acquittal decisions issued by High Courts alone, it is within its power to use its power to uphold the rule of law and reverse acquittal decisions if necessary to avoid a miscarriage of justice. For offenses under Sections 307[15], 341[16], 376[17], and 448[18] of the IPC, the charge sheet required by Section 173[19] of the CrPC was submitted. On December 14, 2004, the victim passed away at Sadar Hospital. The respondent was given a severe life sentence by the Session Court for the offense under Section 302[20] of the IPC and a severe ten-year sentence for the offense under Section 376[21] of the IPC. The two sentences were intended to follow one another.
- Parting remarks by the Court
The Medical Board performed the so-called “two-finger test” when assessing the victim to see if she had developed a habit of engaging in sexual activity. This Court has consistently denounced the use of this backward-looking and intrusive inquiry in rape and sexual assault cases. This alleged test is not supported by science and neither supports nor invalidates claims of rape. In the case Satbir v Surat Singh[22] & State of Punjab v Ajaib Singh[23], it was held that the two-finger test must not be conducted. To assess whether the elements of Section 375[24] of the IPC are present in a given situation, it is immaterial whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse.” The so-called criterion is founded on the false presumption that a woman who is actively engaged in sexual activity cannot be raped. To imply that a woman cannot be trusted when she claims to have been raped simply because she engages in sexual activity is patriarchal and sexist. Anyone who violates the instructions of this Court by performing the “two-finger test” on someone who is allegedly the victim of a sexual assault is guilty of misconduct.
CONCLUSION
Two fingers test is inhuman and an unscientific test and no rape survivor should have to go through it in order to prove their claim of rape. Medical specialists and social workers say that it amounts to Re-Rape of the victim. It not only violates the right of privacy of the victim but also affects her mental, physical and ethical status. Private and public hospitals should be informed of the Ministry of Health and Family Welfare’s directives. The problem can be resolved by extensively sensitising and training medical and law enforcement personnel.
Author(s) Name: Garima Kamboj (University Institute of Legal Studies, Panjab University, Chandigarh)
References:
[1] Indian Penal Code 1860, s 307
[2] Indian Penal Code 1860, s 341
[3] Indian Penal Code 1860, s 376
[4] Indian Penal Code 1860, s 448
[5] Code of Criminal Procedure 1973, s 173
[6] Indian Penal Code 1860, s 302
[7] Indian Penal Code 1860, s 376
[8] Constitution of India 1950, art 136
[9] Indian Evidence Act 1872, s 32(1)
[10]Ibid
[11] Moti Singh And Another v State of Uttar Pradesh (1964) AIR 900
[12] Indian Evidence Act 1872, s 32(1)
[13] Supra 1
[14] Indian Evidence Act, 1872, Section 32(1)
[15] Indian Penal Code 1860, s 307
[16] Indian Penal Code 1860, s 341
[17] Indian Penal Code 1860, s 376
[18] Indian Penal Code 1860, s 448
[19] Code of Criminal Procedure 1973, s 173
[20] Indian Penal Code, 1860, Section 302
[21] Indian Penal Code 1860, s 376
[22] Satbir v Surat Singh (1997) 4 SCC 192
[23] State of Punjab v Ajaib Singh (2005) 9 SCC 94
[24] Indian Penal Code 1860, s 375
