The State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai

Evidence Act, 1872 – s.32(1) – Dying declaration – Admissibility and probative value of –Held: There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious – Further, 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– Also, 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 – In the present case, the dying declaration was recorded in the victim’s words and read out to her, after which she affixed her signature to it– Victim was in a competent state of mind when she made the statement– It was made voluntarily and is true. Criminal Law – Evidence –Witnesses – Victim raped and set on fire – Family members of the victim-deceased and other persons known to her were declared hostile – Effect of, if any on prosecution’s case – Factors responsible for witnesses turning hostile – Discussed.

Penal Code, 1860 – s.375 – Two finger test – Deprecation of – Directions issued to Union Government and the State Governments –Held: 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 Supreme Court shall be guilty of misconduct – Criminal Law (Amendment) Act 2013 – Evidence Act, 1872 – s.53A. Allowing the appeal, the Court

HELD: 1.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

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. 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. 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. 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. 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. [Paras 3236][1050-D-G; 1051-C-D; 1052-B-D, G-H]

Moti Singh v. State of Uttar Pradesh; AIR 1964 SC

900 : [1964] SCR 688 – held inapplicable.

b. The statement of the deceased relates to the cause of her death and the circumstances of the transaction which resulted in her death

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. 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 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. 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. [Paras 37, 39 and 40][1053-B; 1054-B-E] c. The admissibility and probative value of the dying declaration

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. 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. 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 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). 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. There is 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. 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. 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. [Paras 41, 4548][1054-F-G; 1056-D-G; 1057-A-C]

Khushal Rao v. State of Bombay AIR 1958 SC 22 : [1958] SCR 552; Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 : [1998] 2 SCR 1097; Surinder Kumar v. State of Punjab (2012) 12 SCC 120 : [2012]

9 SCR 1019 – relied on.

2.1 The prosecution has proved its case against the respondent beyond reasonable doubt

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. 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. [Paras 49 and 50][1057-C-F]

Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : [2005] 5 Suppl. SCR 474; State of Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552 : [1985] 2 SCR 621– relied on.

2.2 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 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. 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. [Paras 53-55][1058-D-E; 1059-D-F]

2.3 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. 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. The High Court’s decision is set aside and restore the Sessions Court’s judgment convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order 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. [Para 59][1060-E-G]

State of Karnataka v. Shariff (2003) 2 SCC 473 : [2003]

1 SCR 572; Bhagirath v. State of Haryana (1997) 1 SCC 481 : 1996 (9) JT 654; Ramesh v. State of Haryana, (2017) 1 SCC 529 : [2016] 8 SCR 936; Satbir v. Surat Singh (1997) 4 SCC 192 : [1997] 2 SCR 1; State of Punjab v. Ajaib Singh (2005) 9 SCC 94 : 2004

(1) Suppl. JT 69; Lillu v. State of Haryana (2013) 14 SCC 643 – relied on.