Significance of Dying Declaration by Rape Victims : Admissibility and Evidentiary Value

“Nemo Moriturus Praesumitur Mentire”

A man will not meet his maker with a lie in his mouth.

The statement given by a person who is on his death bed regarding any injuries or damage that culminated in the death or the circumstance under which the injuries were inflicted is termed as Dying Declaration. 

The provisions of The Indian Evidence Act, 1872, recognize the fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ Section 32(1) of the Act, talks about the concept of dying declaration. This section deals with cases related to a person who is dead or who cannot be found. It also provides that, it is not a necessary condition for the person making dying declaration to be dying while making the statement. This concept is governed by the Latin maxim “Nemo Moriturus Praesumitur Mentire”, which means ‘a man will not meet his maker with a lie in his mouth.

A dying declaration is called as ” Leterm Mortem”. The word ”Leterm Mortem” means ” Words said before death”. This is a type of evidence under the Indian Evidence Act, 1872 which is admissible even when it is not made on oath and the person making it cannot be cross-examined. It is considered an exception to the hearsay rule because if a dying declaration of a person is not considered then the purpose of justice can be forfeited in situations where there is no eye witness or any other witness to the crime is present except the person who died.  

FORMS OF DYING DECLARATION

There is no particular form of dying declaration but the crucial factor here can be who stabbed the deceased and what is required to be a part of the statement so that it can be considered as a dying declaration. It can be in various forms namely: Written form, Verbal form, Gestures, and Signs form as well as in the form of narrations. It is most preferred that it is in a written form in the vernacular which the person speaks and understands. 

• Question Answer Form

The best form of dying declaration is considered to be the question-answer form. But whenever a statement is recorded in this form, one thing must be taken care of that is, that the questions and the answers shall be written as it is spoken. 

• Gesture and Sign Form

When a person is unable to speak or write then he can make gestures of yes or no as the answers to the questions which is also considered to be a valid dying declaration. 

The value of the sign language would depend upon who recorded the signs, what gestures and nods were made, what were the questions asked, whether simple or complicated, and how effective and understandable the nods and gestures were.

In the case of Queen-Empress v. Abdullah (1885 ILR 7ALL 385)¹: Accused had cut the throat of the deceased girl and because of that, she was not able to speak. So she indicated the name of the accused by the signs of her hand. It was held by the full bench of Hon’ble Allahabad High Court that, “If the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.”

• Language Of Dying Declaration 

Where the deceased made the statement in Tamil and Telugu languages, it was held that the statement could not be discarded on that ground alone, or on the ground that it was recorded only in Tamil. Where the statement was in Kannada and the doctor recorded it in Hindi but the precaution of explaining the statement to the injured person by another doctor was taken, the statement was held to be a valid dying declaration.

• Incomplete Dying Declaration 

Where the deceased fails to complete the main sentence (for instance, the genesis or motive for the crime) a dying declaration would be unreliable. However, if the deceased has narrated a full story, but fails to answer the last formal question as to what more he wanted to say, the declaration can be relied upon.

ADMISSIBILITY OF DYING DECLARATION

Condition Precedents For Admissibility Of Dying Declaration:

• The declarant who gave the dying declaration should die. 
• The dying declaration must be complete. 
• It must be voluntary and uninfluenced. 
• The cause of death must be explained by the declarant or at least the situation which resulted in his death must be explained. 
• The declarant who makes the dying declaration, must be conscious and coherent. 
• The declarant must be of sound state in mind. 
• The cause of death of the declarant must be in question. 

EVIDENTIARY VALUE OF DYING DECLARATION

The evidentiary value of a dying declaration varies from case to case as well as fact to fact. In K. R. Reddy v. Public Prosecutor (1976) evidentiary value of dying declaration was observed as under:- 

• It is admissible under section 32 and not stated on oath so that its truth could be tested by cross-examination.
• The court has to apply the scrutiny and the closest circumspection of the statement before acting upon it. 
• Great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. 
• The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any undue influence. 
• Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to record the conviction even without further corroboration.²

IMPORTANT CASE LAWS CONCERNING DYING DECLARATIONS BY THE RAPE VICTIMS

• Nirbhaya case³

Facts of the case –

In the year 2012, on a bus, a girl was brutally raped by six people. She was traveling on the bus with her friend. The intestines of the girl were ripped out of the body and she with her friend were thrown out of the bus on the road and were left to die. They both were taken to the Safdarjung Hospital immediately and later the girl was shifted to Mt Elizabeth Hospital in Singapore.⁴ In the Singapore hospital, the girl died due to her fatal injuries. Before dying, the girl made a dying declaration. In the dying declaration, the girl asked for justice and also named her attackers, Ram Singh, Pawan Gupta, Vinay Sharma, Mukesh Singh, Akshay Thakur, and the juvenile.

Judgment of the case- 

Dying declaration being a strong evidence and corroborative evidence all the six accused were convicted. The juvenile accused was tried separately and then he was sentenced to three years in the rehabilitation. The case was considered the ‘rarest of the rare’ cases and all the remaining five accused were given capital punishment. Later in the following year, the bus driver committed suicide in the Tihar jail. In the year 2020, the remaining four accused were hanged till death. 

In this case, the dying declaration made by the victim was the sole evidence that was enough to convict all of the accused. The dying declaration passed the test of reliability and was also supported by the prosecution.⁵ In the case the dying declaration was made by the hand gestures of the victim the declaration was found to be voluntary, true, and consistent by the Supreme Court of India.

• Unnao rape case⁶

Facts of the case-

In the year 2017, a minor in the Unnao district of Uttar Pradesh was allegedly raped. She was raped by the BJP MLA Kuldeep Sengar along with his brother and other compliances. The FIR of the case was also not lodged as the police department refused to take any action. 

The incident came into the limelight in the year 2018 when the victim tried to immolate herself in front of CM Yogi Adityanath’s residence due to the inaction of the police department. The father of the victim was beaten by the family of the MLA and further, he was wrongfully arrested, five days before the 2018 incident. Later the father of the victim passed away in judicial custody. 

After this incident the brother of Kuldeep Sengar was arrested and other four associates were also arrested.⁷ They all were booked under Section 323 (voluntarily causing hurt), section 304 (culpable homicide), and Section 504 (intentional insult with intent to provoke breach of peace) of the Indian penal code, 1860. The matter was looked after by the National Human Rights Commission and later the case was handed over to the CBI. 

In the year 2019, the family of the victim was hit was a truck in which two aunts of the victim died, and the victim and her lawyer were in a critical condition. 

Judgment of the case- 

Kuldeep Sengar was earlier given a clean chit in the case and was arrested for rape as well as conviction concerning the road accident which led to the death of the family of the victim. He was given life imprisonment under the provisions of IPC, 1860.⁸

• Hathras Case⁹

Facts of the Case-

On 14th September 2020, the victim (19 years old, Dalit) went to the farm to collect fodder. Four men- Ramu, Sandip, Ravi, and Lavkush dragged her with her dupatta and thus injured her spinal cord. The accused were of the upper caste. The violence left the victim paralyzed and her tongue was cut off. Her cries were heard by her mother who later found her lying on the farm. In the three recorded statements of the victim, she admitted that she was raped and was strangled when she resisted.¹⁰ The victim died on 29th September 2020. The autopsy explained the cause of death as the injury to the cervical spine by blunt trauma caused by force. It was concluded as rape and strangulation in the medical history. 

Judgment of the case-

On 2nd March 2023, the court acquitted three out of four accused persons and convicted one person for culpable homicide not amounting to murder. The convicted Sandeep Sisodia was sentenced to life imprisonment by the court after founding him guilty under Section 304 (punishment for culpable homicide not amounting to murder) of the Indian Penal Code, Sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and fined ₹50,000. The other accused — Ramu, Lav Kush, and Ravi — were acquitted by the special court due to lack of evidence.¹¹

CONCLUSION 

As a piece of evidence, it is stated that a dying declaration is now fairly crystal clear by judicial decisions. The importance of the Dying declaration as a piece of compelling evidence is increasing with the intensification of cases wherein it is generally laid the foundations for the prosecution. A dying declaration is considered as a weak kind of evidence because in this the accused do not get any opportunity in order to cross-examine the declarant. Thus, the uncrossed version of the declarant is generally thrust upon the accused and they could further be held guilty of the crime which is alleged in the declaration. Under these circumstances, it is said that the courts are generally expected to be very circumspect and cautious in accepting the dying declaration. Therefore, In spite of considering dying declaration as a weak kind of evidence, they are based on the principle that a person would not die with a lie in his mouth.

1.  Queen-Empress v. Abdullah (1885 ILR 7ALL 385) ↩︎
2. Cogency of Dying Declaration and Evidentiary Value by Smt Radhika Gundla  ↩︎
3. Mukesh & Anr vs State of NCT of Delhi and Ors (2017) ↩︎
4. V R Dinkar, scientific expert evidence, 1st edition, Eastern law house, Calcutta, 2013 ↩︎
5. Shipra Arora, Dying declaration- section 32(1) of Indian evidence act. ↩︎
6. Kuldeep Singh Sengar vs Union of India (2018) ↩︎
7. Dignath Raj Sehgal, dying declaration and its importance for the rape victims ↩︎
8. Varsha Rajora, dying declarations by rape victims ↩︎
9. Sandeep & Ors vs Union of India & Ors (2020) ↩︎
10. V Vekatesan, why the dying declaration of the Hathras victim a legally admissible evidence ↩︎
11. https://www.thehindu.com/news/national/other-states/scst-court-in-hathras-acquits-three-holds-one-guilty-of-culpable-homicide/article66572682.ece 
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