Case Summary

State of Jharkhand V. Shailendra Kumar Rai (2022 Scc Online Sc 1494)

This Case Summary is written by Neelvi Rai, a 3rd-year law student at the University Of Petroleum And Energy Studies, Dehradun


Rape is a crime against women and against humanity. It is a type of sexual violence that involves sexual intercourse against a person without their consent. It leaves victims with lifelong physical, emotional and psychological trauma. To determine if the victim was sexually active or not, a two-finger test was performed. The pervaginum test, or the virginity test, is used to check the relaxation of the muscles in a woman’s vagina to determine whether or not she is sexually active. It represents the patriarchal thinking of society. In the relevant case, the Supreme Court prohibited the use of the two-finger test for rape and sex crimes, repeating that it re-traumatizes the woman.  The test is based on the assumption that sexually active women cannot be raped, which is factually false and extremely patriarchal. It also has no scientific basis, and the test would be considered abuse. The following case State of Jharkhand vs Shailendra Kumar Rai, is a landmark case indicating the end of a patriarchal and invasive practice.


The accused raped the victim and the deceased on November 7 when he entered the house in Narangi village in 2004. He threatened to kill her. When the victim screamed for help, the accused poured kerosene over her body and set it ablaze. The accused left when he saw her family. The fire was extinguished by the victim’s family, who rushed her to Sadar Hospital. The victim’s health deteriorated over time. While examining the victim’s injuries, a two-finger test was also performed. A notice of indictment required by Section 173 of the Penal Code was filed for the offences committed under Sections 307, 341, 376 and 448. The victim died on December 14, 2004, at Sadar Hospital. The Sessions Court sentenced the respondent to rigorous imprisonment for life for the offence under Section 302 IPC and to rigorous imprisonment for ten years for the offence under Section 376 IPC. The two sentences were meant to follow each other. As a result of that decision, the respondent appealed to the Jharkhand High Court. The court relied on the decision of the Sessions Court under Article 136 of the Constitution of India.


  • Is the deceased’s statement relevant under Section 32(1) of the Indian Evidence Act 1872?
  • Whether the prosecution prove the charges against the respondent beyond a reasonable doubt?
  • Whether a victim of rape being “habituated with sex” will affect the conclusion of a reported rape case?


The appellant argued that the High Court misunderstood two crucial facts: first, that the post-mortem examination of the deceased was conducted within 12 hours of the time of death, and second, that Dr RK Pandey was attending to a patient on the table next to them, not in a room adjacent to where they were sitting. Due to her burns, the cause of death was determined to be septicemia. The defendant opposed them, arguing that in this area, no definite assessment could be made based on the medical examiner’s report, although it was reported on the deathbed that the defendant had raped the deceased. The death notice is the only evidence that the accused sexually abused the deceased and that the victim died approximately one month after the alleged incident. Therefore, the deceased’s statement to IO is not deathbed. Part 32 (1) of the Indian Evidence Act 1872 considers the statement of the deceased to be relevant.

According to the autopsy conducted by Dr R.  Mahto, the deceased patient died of blood poisoning caused by burns. The victim’s comment was invalid as a dying declaration, the Court of Appeal reasoned in Moti Singh and another v State of Uttar Pradesh. In this situation, it was alleged that the accused shot the victim. The patient was taken to a hospital, treated for her injuries, and released. He was cremated before death when he died a few weeks after suffering gunshot wounds.  According to the district court, there was no evidence in the documents about the cause of the victim’s death. Therefore, according to sec 32 (1), of the Evidence Law, his comment was not considered a notification of the reason for his disappearance or any other aspect of the incident that led to it. The postmortem report, in this case, reveals that the victim died of blood poisoning due to burns; therefore, the High Court relied on Moti Singh and Another v. The state of Uttar Pradesh is not eligible. Thus, as detailed in the next section, the victim’s testimony, in this case, is indeed related to the events that led to her death and the cause of her death. According to the cause of death report, the deceased’s burns caused septicemia, ultimately leading to his death. According to the testimony of the deceased, the accused poured kerosene on him and set him on fire, causing him burns. In addition, the deceased’s testimony shows that the accused sexually assaulted her before the arson. Thus, the statement of the deceased meets the requirements of the sec 32 subsection and is an important fact. This appeal is considered a dying declaration. The prosecutor indisputably proved the accused in the charges.

The death report shows that the accused sexually abused the victim before dousing her with kerosene and setting her on fire. Septicemia from the burns was what ultimately killed the patient. Therefore, the victim’s injuries caused by the defendant were the immediate cause of the victim’s death. No evidence in the documents could raise the question of the accused’s guilt. The High Court should not have set aside the decision of the Sessions Court. Even though the court often leaves the highest court alone to acquit, its jurisdiction includes exercising its powers to uphold the rule of law and to overturn acquittals when necessary to avoid an error. Based on Sections 173 of the Penal Code, a charge sheet was filed for offences under Sections 307, 341, 376 and 448 of the Penal Code. The victim died on December 14, 2004, at Sadar Hospital. The Sessions Court sentenced the respondent to life imprisonment for the offence under section 30 IPC and rigorous ten years imprisonment for a crime under sec 376 of IPC. The two sentences were meant to follow each other.

The medical committee performed the so-called two-finger test, assessing whether the victim had developed a habit of sexual activity. The court has consistently condemned the use of this retrospective and intrusive investigation in rape and sex crimes. This purported test is not backed by science and does not support or disprove rape claims. In  Satbir v Surat Singh and the State of Punjab, it was held that the two-finger test could not be carried out. To assess whether the elements of sec 375 of the Code of Criminal Procedure are present in a specific situation, it does not matter whether the woman.

In Lillu v. State of Haryana, this Court held that the “two-finger test” violates the right to privacy, integrity, dignity, and rape. In Ramesh v. State of Haryana, this Court noted some of the factors responsible for witnesses turning hostile: _ On the analysis of various cases, the following reasons can de discerned which make witnesses retract their statements before the court and turn 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 witnesses.

“Accustomed to intercourse” or “accustomed to intercourse.” The so-called criterion is based on the false assumption that a woman actively participating in sexual activity cannot be raped. The implication that a woman cannot be trusted when she claims she was raped simply because of sexual activity is patriarchal and sexist. Anyone who violates this court’s guidelines by administering the “two-finger test” to an alleged victim of sexual assault is guilty of misconduct.  The Supreme Court banned the “two-finger test” in rape cases and warned that those conducting such tests would be convicted of a misdemeanour.  Unfortunately, the “two-finger test” is still practised today. The court has repeatedly banned using the two-finger test in cases of rape and sexual assault. The so-called test has no scientific basis. Instead, it re-victimizes and traumatizes women. The two-finger test should not be done. The test is based on the false assumption that a sexually active woman cannot be raped. Nothing could be further from the truth. The evidential value of a woman


The two-finger test is inhumane and unscientific; no rape survivor should have to go through it to prove their rape claims. According to doctors and social workers, it is repeated rape of the victim. This violates the victim’s right to privacy and affects his mental, physical and ethical condition. Private and public hospitals must be informed of the instructions of the Ministry of Health and Family Welfare. The problem can be solved by extensive awareness raising and training doctors and police. The two-finger test doctrine is a practice that has been deemed highly unnecessary in the medical field. It violates the right to privacy, dignity and the law, as well as the right of citizens to know what their doctor is doing with their personal bodily fluids or bodily functions.

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