Evidence Act, 1872
Section 32(1)—Dying declaration recorded by police official—Relevancy—Victim died due to burn injuries sustained by her—Statement of deceased relates to the cause of her death and circumstances of the transaction which resulted in her death—Statement of deceased satisfies the conditions in Section 32(1) of the Evidence Act and is itself a relevant fact—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 declaration recorded by police personnel are inadmissible for that reason alone—Issue of dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case—Dying declaration was made voluntarily and is true—Deceased was in competent state of mind when she made a statement to police official—Statement of deceased is relevant under Section 32(1) of the Act.
[Paras 32 to 48]
Section 53A—Evidence of character or previous sexual experience not relevant in certain cases—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.
[Para 63]
Indian Penal Code, 1860
Sections 302, 341, 376 & 448—Rape and murder—Order of conviction by Sessions Court set aside by High Court—Appeal—Dying declaration was recorded in the victim’s word and read out to her, after which she affixed her signature on it—Statement of deceased is relevant under Section 32(1) of the Evidence Act—Certain witnesses including family members of deceased were declared hostile is insufficient to cast doubt upon the prosecution’s case—Absence of evidence which establishes the consistency of dying declaration over a period of time is not fatal to the case of prosecution—Prosecution proved its case beyond reasonable doubt—Decision of High Court is set aside and that of Sessions Court convicting respondent is restored—Appeal allowed.
[Paras 49 to 59]
Section 375—Rape—Two finger test or per vaginum test—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—Two finger test or pre-vaginum test must not be conducted—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—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—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.
[Paras 60 & 61]
Section 375—Rape—Two finger test or per vaginum test—Ministry of Health and Family Welfare issued guidelines for health providers in cases of sexual violence—These guidelines proscribe the application of the “two finger test”—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—Direction issued to Union Government as well as State Government to (a) Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to the all government and private hospitals; (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—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 the Apex Court shall be guilty of misconduct.
[Paras 64 to 68]