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Gangrape victim's dying declaration most crucial

December 31, 2012 12:07 IST
The dying declaration in the Delhi gangrape case will be of utmost importance when the police go ahead and file the chargesheet. The police will, however, need to be extremely careful while relying heavily on the dying declaration and various factors will need to be taken into consideration before making it their main point of argument before the court, reports Vicky Nanjappa.

Delhi Police sources tell that the chargesheet would comprise the dying declaration of the victim, the testimony of the eye witness (victim's friend who was on that ill fated bus) and also the confessions and interrogation report of the accused persons in the case.

With the police promising a thorough case and maximum punishment to the guilty, the importance of a dying declaration is of utmost importance. Among all the evidence available on hand the statements made by the victim in the hospital would come in handy for the police.

Earlier it was a statement, but now with the victim's death, it would be treated as a dying declaration by the court of law.

A dying declaration is enshrined under the Indian Evidence Act of 1872. It is basically a statement made by a dying person and while considering the same during the trial the following has to be borne in mind.

The statement is admissible only once the person has died if it were to be treated as a dying declaration.

Statements must have been made as to the cause of his death or as to circumstances of the transaction resulting in his death.

The cause of death must be in question.

The statement must be complete and the declarant must be competent.

The Delhi Police sources say that it is an important piece of evidence and under the given circumstances it requires some amount of corroboration. The court could accept the dying declaration at face value.

The police, however, argue that there was no need for a video of the dying declaration. Although there is a provision that is available, there is no law which mandates that a video of the declaration ought to have been shot. It is sufficient if the declaration was made voluntarily and in the presence of a magistrate, which has been done in the given case.

The Supreme Court in the Mani vs the State of Tamil Nadu case had held that there is no bar for basing conviction solely on the dying declaration, but the same should be tested about the voluntaries and truthfulness.

Under Section 32 of the Indian Evidence Act of 1972 a dying declaration should be reliable and in case of any suspicion the court has to seek a corroboration of the same with the evidence on hand. If evidence shows that statement of deceased is not wholly true it can be treated only as a piece of evidence, but conviction cannot be based solely upon it.

Convictions can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, if may be considered only as piece of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof.

The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them, the Supreme Court also held.

In the Laxman vs the State of Maharashtra case, the Supreme Court held in 2002 that "the situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.

"The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.

"There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

"What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

"It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration".

In the State of Maharashtra vs the Samadhan Dhudka Koli case the Supreme Court held that consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.

In the Kalawati vs State of Maharashtra case it was held that if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where the dying declarati0on is suspicious, it should not be acted upon without corroborative evidence.

"Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected."

A dying declaration which suffers from infirmity cannot form the basis of conviction. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.

Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

In the Sarbir Singh vs State of Punjab case it was said by the Supreme Court that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances.

In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why the courts have insisted: "The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established;

"All the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved; the circumstances should be of a conclusive nature; the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused".

Vicky Nanjappa