This article is authored by Anvita Bhardwaj, currently pursuing B.A.LLB (Hons) from Symbiosis Law School, Noida. This article critically analyses the dying declaration left by rape victims and their reliability. 

Introduction 

The dying declaration is based on a Latin maxim, “Nemo moriturus praesumitur mentire”. This, when translated to English, means that a man does not meet his maker with a lie in his mouth. Therefore, dying declarations are statements made by a dying person that describe the lethal injuries they sustained or the circumstances that led to such a situation because of which such types of injuries were inflicted upon them. The statement should be made by the deceased in the event of death and not long prior to it, otherwise, the statement will not be admissible under the Indian Evidence Act.

The dying declaration acts as an exception to hearsay evidence. Generally, in courts, hearsay evidence is considered inadmissible because it is not trustworthy enough and can be manipulated by external factors such as fear, coercion, power, manipulation, etc. Also, hearsay evidence is the experience of not the person himself but of someone else, so it is not subject to tests sanctioned like cross-examination or oath-administration. 

The distinction between English law and Indian law

The Indian law has adopted a wider scope for the nature and interpretation of a dying declaration as compared to the English law. The very first difference between the two in the Indian context is that statements, can be made by people who cannot be found, are incapable of giving evidence or who are deceased, whereas, in the English law, the sense of impending death is a necessity for a declaration to be considered a dying declaration.

In Section 32(1) of the IEA, there is a mention that the statement can also be made with reference to the circumstances that lead to such a kind of injury which is likely to result in death, whereas, in English Law, this clause seems to be missing. Therefore, one can easily see that the Indian scope of interpretation is much wider while taking due care that emphasis is laid on the legal maxim to leave no room for injustice.  

Provision under the Indian Evidence Act and principles governing the declaration

The provision for dying declaration has been put forth under Section 32 of the Indian Evidence Act. It is necessary that at the time of making such a declaration, death is impending upon that person and he or she has complete knowledge of the same.

According to Section 32, the statement could be written or verbal. The relevant statement should come from someone who is dead or cannot be found; it can also come from someone who has ceased to be capable of giving evidence. Further, there are eight sub-clauses in this section. The grounds of admission of a dying declaration are:

• There is a necessity that the victim is the sole eye witness to the crime. 
• The sense of impending death to the victim. 

The sense of impending death creates an obligation which is no less than an oath. The declaration is made in extremity, the victim has no hope left of surviving, he is at a point where his words will have no motive of dishonesty and falsehood behind it. His mind is under the most powerful consideration that it induces him to speak nothing but the truth. Secondly, if a person is dying due to some other reason than the injuries inflicted upon him by the offender, the dying declaration will not be acceptable. There should be a close proximity between the declarant’s death/cause of death and his statement. A statement made on the basis of fear or suspicion will not be admitted as a dying declaration. 

Reliability of the Declaration 

A dying declaration, before it could be depended upon, must go through a test of reliability as the statement is not made in the presence of the accused. The accused lacks the opportunity to put it through any sort of cross-examination to test its veracity. Hence, it is the duty of the court to subject it to scrutiny. If the dying declaration is found reliable it can become the sole basis of the conviction of the accused. It must be true and voluntary. In circumstances where it is not in accordance with the prosecution’s version, the declaration becomes unreliable. Few directives were laid by the Supreme Court in this regard in the case of State of UP v. Madan Mohan:

• It is for the court to see that the dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination.
• The court should ensure that there was no possibility of tutoring or prompting.
• Certificate of the doctor should mention that the victim was in a fit state of mind. If the doctor is available, the magistrate need not record his own satisfaction about the fit mental condition of the declarant as it will not be acceptable. 
• When the medical condition of the declarant is so precarious that there is uncertainty about his/her existence till the time the doctor arrives, then the dying declaration should be recorded by the executive magistrate and police officer.
• The dying declaration may be in the form of questions and answers with the answers being written in the words of the person making the declaration. But the court cannot be too technical.   

Therefore, the dying declaration is quite valuable in a case, it is an important and reliable document once it passes the scrutiny of the court.

Can a dying declaration be the sole basis of conviction

Yes, a dying declaration can become the sole basis of conviction. As per the courts, if the dying declaration passes the scrutiny test it can become the sole basis of conviction. The accused will not have the right to cross-examine it. If the declaration is found true, no corroborative evidence is needed against the accused. Therefore, in order to completely rely upon it, it is essential that there is no scope for suspicion regarding its veracity. It should be taken care of that the victim was under no force while making her statement. It has to be ensured that the victim was in a fit state of mind while identifying her offenders. If these conditions are found to be true, then can it only form a basis of conviction. 

It is important that the competency and the credibility of the statement of the deceased is maintained. There should be the presence of a doctor to declare that the victim is in a fit mental state. Once the doctor certifies, then only can the statement be considered to be credible. If the doctor is not present to certify the same, the statement of the victim cannot be relied upon. This is because the court needs to be sure that the victim was in a clear state of mind while observing and identifying the circumstances or the attackers responsible for her condition. The statement made can be oral or written. The victim can also make the statement to any of the witnesses if the condition is too critical for her to wait for the presence of a doctor. This will also be admissible in the court as a dying declaration of the victim.

In this case, the witness can help in clarifying the mental condition of the victim. Usually, the presence of a Magistrate to record the declaration is required. However, if the victim admitted in the hospital is in a critical condition and could pass away any time, then the doctor is deemed fit to record the dying declaration of the victim, he does not need to wait for the Magistrate’s presence. He can record the victim’s dying declaration and that can be admissible in the court of law. The victim does not need to give every single detail of the incident. An elaborate and exhaustive statement that covers every single detail is not a requirement by law, though a detailed narrative is easier to scrutinize. Once the statement meets all the conditions that pass the test of scrutiny, the dying declaration can suffice without further evidence and the accused will not get the right to cross-question it.   

Important Case Laws

Nirbhaya Case

Case brief

Facts

Mukesh & Anr v. State For Nct Of Delhi & Ors (2017); This case law is more commonly known as the Nirbhaya Case, to mark a symbol of resistance against rape. In 2012, a girl was brutally raped on a bus by six people while she was travelling with her friend. Her intestines were ripped out of her body. Both of them were thrown on the road and left to die. They were taken to Safdarjung Hospital. Later on, the girl was taken to Mt. Elizabeth Hospital in Singapore where she succumbed to her injuries. Before dying, she left a dying declaration where she asked for justice and named her attackers: Ram Singh, Mukesh Singh, Akshay Thakur, Pawan Gupta, Vinay Sharma, and the juvenile.

Judgment

As a result of corroborative evidence along with the strong evidence, i.e. the dying declaration of the victim all six men were convicted. The juvenile was tried separately and sentenced to three years in the reform facility. Remaining five of the culprits were granted capital punishment as this case was considered as of the ‘rarest of the rare’ cases. The bus driver had committed suicide in Tihar Jail in 2013. The remaining four were hanged to death in 2020. The dying declaration by the victim was the sole evidence that was enough to convict all six of the accused as it had passed the test of reliability and was supported by the prosecution. Though the dying declaration was made through hand gestures of the victim, it was found to be true, voluntary and consistent by the Supreme Court.

Unnao Rape Case

Case brief

Facts

The case Kuldeep Singh Sengar v. Union Of India (2018) is an appropriate example for dying declaration. In 2017, a minor in Unnao district of Uttar Pradesh was allegedly raped by BJP MLA Kuldeep Sengar, his brother and accomplices. The F.I.R. was not lodged as the police authorities refused to do so. This came into limelight when in 2018, the victim attempted to immolate herself in front of CM Yogi Adityanath’s residence due to police inaction. Five days prior to this incident, her father was beaten by MLA’s family, and he was wrongfully arrested. Subsequently, he had passed away in judicial custody. Post this incident, Kuldeep Sengar’s brother was arrested along with four other associates and charged under Section 304 (Culpable Homicide), Section 323 (Voluntarily Causing Hurt) and Section 504 (intentional insult with intent to provoke breach of peace) of the Indian Penal Code, 1860. The National Human Rights Commission took cognizance of this matter. The case was handed over to the CBI. In 2019, the victim’s family was hit by a truck which caused the death of her two aunts and left the victim and her lawyer in a critical condition.

Judgment

Kuldeep Sengar who was earlier given a clean chit was later, not only arrested for rape but also convicted in relation to the road accident which resulted in the death of the victim’s family. He has been sentenced to life imprisonment. Both Sengar and his brother are in police custody. In this case, the victim’s father before passing away in his dying declaration blamed Sengar for the rape of his daughter.

Conclusion     

A man may lie, but the circumstances do not. A dying declaration is an important piece of evidence and holds much more value than the statement of the eye-witnesses. The only drawback is that the accused cannot cross-examine the same. It enjoys almost a sacrosanct status when it comes to evidence, and if found true and free from coercion, there is no legal obstruction in considering it the sole basis of conviction provided there is corroboration of evidence. It is self-speaking.

Recently, news has made us aware of another victim of rape from the Unnao district. In her dying declaration, she expressed her will to live and demanded the death penalty for her perpetrators; wherein in front of the Sub Divisional Magistrate, Dayashankar Pathak, she gave a statement in which she informed that she was abducted and raped by Shivam and Shubham Trivedi in December 2018. She also confessed that she was on her way to the Court where she was attacked by the accused and set on fire. Even in this case, we can see that the dying declaration of the victim was proved to be reliable, true, voluntary and consistent and all five accused were charged with murder. Sadly, the victim succumbed to her injuries. The value of dying declaration in offences containing a high degree of violence is crucial as it helps in conviction if it survives the scrutiny of the court.   

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