2022 LiveLaw (SC) 890

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
DR. DHANANJAYA Y. CHANDRACHUD; J., HIMA KOHLI; J.
Criminal Appeal No. 1441 of 2022; October 31, 2022
The State of Jharkhand versus Shailendra Kumar Rai @ Pandav Rai
Two Finger Test - The "two-finger test" or pre vaginum test must not be conducted
- It 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 is an affront to their dignity - 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 - Referred to Lillu v. State of Haryana (2013)
14 SCC 643 - Directions issued to the Union Government as well as the State
Governments - Ensure that the guidelines formulated by the Ministry of Health and
Family Welfare are circulated to all government and private hospitals - Conduct
workshops for health providers to communicate the appropriate procedure to be
adopted while examining survivors of sexual assault and rape - 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. (Para 61-66)
Indian Evidence Act, 1872; Section 32 - Dying Declaration - Although a dying
declaration ought to ideally be recorded by a Magistrate if possible, it cannot be
said that dying 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 - The fact that the dying declaration is not in the form of questions and answers
does not impact either its admissibility or its probative value - There is no rule
mandating the corroboration of the dying declaration through medical or other
evidence, when the dying declaration is not otherwise suspicious. (Para 41-44, 50-
52)
Criminal Trial - Factors responsible for witnesses turning hostile - Referred to
Ramesh v. State of Haryana (2017) 1 SCC 529 - 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. (Para 53-54)
Indian Penal Code, 1860; Section 375 - 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. (Para 62)
For Appellant(s) Mr. Vishnu Sharma, Adv. Ms. Madhusmita Bora, AOR Mr. Dipankar Singh, Adv. Ms.
Anupama Sharma, Adv.
For Respondent(s) Mr. Braj Kishore Mishra, AOR Mr. Bikram, Adv. Mr. Abhishek yadav, Adv.
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, J;
Table of Contents
A. Background ........................................................................................................................ 2
1
i. An overview of the testimonies of the witnesses examined by the prosecution ........ 3
a. Lallan Prasad, PW 11 ..................................................................................................... 3
b. Dr. RK Pandey, PW 6 ..................................................................................................... 3
c. Dr. Minu Mukherjee, PW 9 .......................................................................................... 4
d. Dr. R Mahto, PW 8 ...................................................................................................... 4
e. Suresh Yadav, PW 12 .................................................................................................... 5
f. Rekha Dasgupta, PW 7 ................................................................................................... 5
g. Hostile witnesses ............................................................................................................ 5
ii. An overview of the testimonies of the witnesses examined by the defence .............. 5
a. Dhirendra Rai, DW 1 ....................................................................................................... 5
b. Dasrath Tiwary, DW 2 ..................................................................................................... 5
c. Balmukund Rai, DW 3 ................................................................................................. 5
iii. The decision of the Sessions Court .............................................................................. 6
iv. The High Court’s judgment on appeal........................................................................... 6
B. Issues................................................................................................................................ 7
C. Submissions ................................................................................................................. 7
D. Analysis ........................................................................................................................ 8
i. The statement of the deceased is relevant under Section 32(1) of the Indian
Evidence Act 1872 ............................................................................................................ 8
a. The victim died due to the burn injuries sustained by her ........................................... 8
b. The statement of the deceased relates to the cause of her death and the circumstances
of the transaction which resulted in her death ................................................................. 9
c. The admissibility and probative value of the dying declaration ................................. 10
ii. The prosecution has proved its case against the respondent beyond reasonable
doubt ................................................................................................................................ 12
E. Parting remarks .............................................................................................................. 14
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
Sessions Judge had convicted the respondent for offences punishable 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 ground and committed rape upon her, while threatening to kill her if
she sounded an 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.

1 “IPC”
2
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 submission of a supplementary charge-sheet against the
respondent, with reference 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 witnesses. 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 incident 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. She affixed
her signature to the declaration in his presence, and he signed 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 recorded 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 prepared 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 occurred. 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 which 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 crime 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
3
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.
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 constituted to examine the victim when she was undergoing
treatment for her injuries. She testified that the Medical Board examined the deceased 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 the 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 were 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.
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, the brain matter was pale,
the lungs were pale, the right 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.
4
18. In response to the questions posed to him during cross-examination, he stated that
those who suffer from septicemia 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 Prasad 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 IPC. 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 reference 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 undergarments of the deceased were seized.
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 police 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 that 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.
5
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 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 sentence was not deemed to be
required for the offences punishable under Sections 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 dying 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;
e. Dr. RK Pandey’s testimony that the deceased was in agony does not lead to the
conclusion that she was not fully 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 crime 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
Sections 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 to be hostile witnesses;

6
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 room 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 cross-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;
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 Mishra made the following submissions:
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.

2 AIR 1964 SC 900

3 “Evidence Act”
7
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 as a witness in the proceedings before the Sessions Judge and was not called to
depose in evidence. Counsel appearing for respondent 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 died 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 the deceased to Bokaro Burn
Hospital is relied upon to urge that such a 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;

8
if it refers to an opinion or to the grounds on which that 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 treatise 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 existence or condition of any material thing other
than a document, the Court 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 indirectly. 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 septicemia 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 statement 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 weeks 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 to 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 circumstances which eventually resulted
in her death, as elaborated upon in the subsequent segment.
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 witnesses (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
9
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 resulted in
his death, in cases in which the cause of that person’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, under expectation of death, and whatever may be the nature of the
proceeding 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 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.
Clause (1) indicates that in cases where the cause of a person’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 resulted in death.
39. In the present case, the statement satisfies the conditions laid down in subclause
(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 described
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 to be a dying
declaration for the purpose of adjudicating this appeal.
c. The admissibility and probative value of the dying declaration
41. There is no rule to the effect that a dying declaration is inadmissible when it is
recorded by a police officer instead of a Magistrate.4 Although a dying declaration ought
to ideally be recorded by a Magistrate if possible, it cannot be said that dying 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.

4 State of Karnataka v. Shariff (2003) 2 SCC 473; Bhagirath v. State of Haryana (1997) 1 SCC 481
10
42. In Khushal Rao v. State of Bombay,5 this Court formulated the yardstick against
which dying declarations may be evaluated:
“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 proposition 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 recorded 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 higher 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, by
circumstances beyond his control; that the statement has been 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 form of questions and answers does
not impact either its admissibility or its probative value, as held in Ram Bihari Yadav v.
State of Bihar:6
“9. … Generally, the dying declaration ought to be recorded in the form of questions and answers
but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual
words of the maker the mere fact that it is not in question-answer form cannot be a ground against
its acceptability or reliability.”
44. Indeed, as recognized by this Court in Surinder Kumar v. State of Punjab7 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 questionanswer form. There
may be occasions when it is possible to do so and others when it may not be possible to do so
either because of the prevailing situation or because of the pain 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 crossexamination,
Dr. RK Pandey stated that he was examining another patient in the adjacent room when
the victim’s dying declaration was recorded. The record of the cross-examination indicates
that Dr. RK 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

5 AIR 1958 SC 22
6 (1998) 4 SCC 517
7 (2012) 12 SCC 120

11
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 the 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 deceased and the 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 direct 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 dying 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 dying 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 existence 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.”
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:

8 (2006) 1 SCC 283

9 (1985) 1 SCC 552
12
“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 only if the circumstances surrounding the dying declaration are not clear or convincing that the
court may, for its assurance, look 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 witnesses 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 statements 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.
(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 “culture of compromise”. Commenting upon such culture in rape trials, 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 category of compromise converts terror into a
bargain in a context where there is no witness protection programme. This often accounts 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 the hostile witnesses were eye witnesses to the crime. Rather,
these witnesses’ 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

10 (2017) 1 SCC 529

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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 been 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.
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 fit, and was present while her statement was recorded by Lallan Prasad. 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 suggests 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 version 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
not 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.
E. Parting remarks
60. While examining the victim, the Medical Board conducted what is known as the
“two-finger test” to determine whether she was habituated to sexual intercourse. This
Court has time and again deprecated the use of this regressive and invasive test in cases
alleging 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 is an affront to their dignity. The “two-
finger test” or pre vaginum test must not be conducted.

11 Satbir v. Surat Singh (1997) 4 SCC 192; State of Punjab v. Ajaib Singh (2005) 9 SCC 94
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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 retraumatise them or violate
their physical or mental integrity and dignity. They are also entitled to medical procedures
conducted in a manner that respects their right to consent. Medical procedures should not be
carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should
be of 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 on 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. 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 masturbation among other things. An intact hymen does not rule out sexual
violence, and a torn hymen does not prove previous sexual 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 State Governments to:
a. Ensure that the guidelines formulated by the Ministry of Health and Family Welfare
are circulated to all government and private hospitals;

12 (2013) 14 SCC 643

13 Ministry of Health and Family Welfare, Government of India, “Medico-legal care for survivors / victims of sexual
violence” (19 March 2014)
15
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 Secretary, Ministry of Health and
Family Welfare, Government of India. The Secretary, Ministry of Health and Family
Welfare, Government of India shall transmit copies of this judgment to the Principal
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 each 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.

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