About the Author: Anusha K is a Student of the University College of Law, Osmania University, Hyderabad.
INTRODUCTION
A Dying declaration, as defined under section 32(1)[1] of the Indian Evidence Act 1872, refers to a statement made by a deceased person as to the cause of his death or the circumstances which led to the cause of his death. The word dying declaration itself says that the statement is made by a person who is on his deathbed. It is considered relevant when the cause of his death comes into question. It is based on the maxim nemo moriturus praesumitur mentire, which means that the man will not meet his creator with a lie in his mouth. In addition, it is necessary that the person making the statement must be aware of their impending death and have no hope of survival. It is believed that the person who is about to die cannot lie or will speak the truth only.
The Dying Declaration serves as an exception to the rule of Hearsay Evidence. The Dying Declaration is considered relevant evidence despite lacking oath and cross-examination.
RAPE CASES AND DYING DECLARATION
Rape has been regarded as one of the most heinous and barbarous crimes throughout the history. In a society where women were often viewed as mere property, rape was initially considered an offence against their property. However, after a long struggle, it has come to be recognized as an offence against the bodily autonomy and integrity of the woman. The women were traumatised after this incident, and it takes a lot of time to come out of such trauma. Rape can have a profound impact on the survivor, causing severe physical and emotional trauma. The grief and trauma experienced by a survivor can be complex and long-lasting.
Dying declaration plays a pivotal role in ensuring justice to the rape victims. Dying declarations are admissible mainly for two reasons- the victim being sole eyewitness of the crime, excluding his evidence means defeating the ends of the justice and the second is, the person is about to die would not lie.
For the admissibility of a dying declaration, the following conditions have to be satisfied:
- The declarant must have died.
- Injuries must have caused the death.
- The declaration must be as to the cause of the death or as to any of the circumstances which resulted in the death.
- The cause of the death of the declarant must be in question.
OVERVIEW OF RAPE LAWS
Section 375[2] of the IPC states, A man is said to commit “rape” if he –
- “Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any person; or
- Inserts, to any extent, any object or part of the body, not being the penis, into the vagina, urethra or anus of the woman;
- Manipulates any part of the body of a woman to cause penetration into the vagina, urethra or anus of the woman;
- Applies his mouth to the vagina, urethra or anus of the woman”.
A man is said to have committed rape under the following circumstances –
- “Against her will.
- Without her consent
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt.
- With her consent, when he knows that he is not her husband, and her consent is given because she thinks that person is her husband.
- With her consent, when, at the time of giving the consent, by reason of unsound mind or intoxication, she is unable to understand the nature and consequences of it.
- With or without her consent, when she is under 18 years of age.
- When she is unable to communicate consent”.
Section 376[3] provides “punishment for rape with rigorous imprisonment of either description for a term which shall not be less than seven years which may extend to imprisonment for and shall also be liable to fine and whoever being a police officer, public servant, member of the armed forces commits rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years which may extend to imprisonment for life and shall also be liable to fine”.
Section 228A[4] of the IPC states, “disclosures of identity of the victim shall be punished with an imprisonment if either description for a term which may extend to two years and shall also be liable to fine”.
IS DYING DECLARATION THE SOLE BASIS OF CONVICTION?
A dying declaration can be admissible as evidence and sometimes can be the sole basis of conviction. A dying declaration has a lot of weight in the court of law. However, the admissibility and weight given to such statements can vary depending on the specific circumstances of the case.
The dying declarations plays a huge role in providing justice to the rape victims. The declaration is said to be made in the presence of a magistrate, but if the victim is in a severe condition, the doctor can also record the victim’s statement.
CASE LAWS
Nirbhaya Case: The Nirbhaya case is one of the most brutal crimes committed against women in the history of India, shocking both the nation and the world and leaving a lasting impact on people’s minds. This horrifying incident took place in south Delhi on 16th December 2012. Nirbhaya, a 23-year-old female physiotherapy intern, was returning after watching a film with her friend at night. She and her friend both boarded a bus which was headed towards Dwarka-Palam road. The bus started going in and out of the bus terminal, and 6 members who were there shut the doors of the bus. Her friend sensed something was wrong and raised an alarm. He was beaten up by a rod and the victim was dragged into the back of the bus and was gang raped. One of the assaulters, who was a minor, inserted a rod into her private parts, which damaged her intestines. Afterwards, they were thrown out of the bus. She was admitted to Elizabeth Hospital, where she died. Doctors said she was left with only 5℅ of intestines and died with multiple organ failure following several injuries. The Doctors were shocked and cried when they saw the condition of Nirbhaya. In a dying declaration, as she was unable to speak, she wrote down the 4 assaulters, Akshay, Vinay, Ram Singh, and Mukesh, as she had heard these names during the assault. These statements were recorded under section 164[5] of the CrPC. The Court said that this is “rarest of the rare cases” and awarded capital punishment to the assaulter, and the minor was sent to a correction home for three years.[6]
Shyam Singh Hada v State of Rajasthan: In this case[7], the victim who had been raped disclosed the offence to her husband before she passed away. Her statement, which is considered a dying declaration, was deemed relevant and admissible in the court of Law. The court said that her statement directly pertained to the events and circumstances leading to her death and was admissible under section 32(1) of the Evidence Act.
In such scenarios, the significance of the declaration statement is evident, as it plays a crucial role in the judgment process and contributes to ensuring justice for the victims.
Need for Corroboration: Once the court is satisfied that the victim’s declaration is true and honest and has been given without any influence and fear and is in a proper state of mind while giving the statement, then in such cases it can be a sole basis of conviction and there is no requirement of corroboration. However, in certain cases, corroboration may be needed to strengthen the case.
RECOMMENDATIONS FOR EFFECTIVE IMPLEMENTATION
To ensure the effective implementation of dying declarations in rape cases, the following recommendations are proposed:
Training for Investigators: Provide regular training for investigators on the importance of dying declarations, how to record them effectively, and the legal nuances involved.
Sensitivity towards Victims: Ensure that investigators and medical professionals are sensitive towards victims and their families, providing emotional support during the recording of dying declarations.
Corroboration: While dying declarations can be the sole basis of conviction, corroboration from other evidence, such as medical records, witness statements, and forensic evidence, can strengthen the case.
Awareness Campaigns: Conduct awareness campaigns to educate the public about the importance of dying declarations in rape cases, emphasizing the need for sensitivity, confidentiality, and support for victims.
By implementing these recommendations, we can ensure that dying declarations are recorded and used effectively in rape cases, ultimately contributing to justice for victims and their families.
CONCLUSION
In a nut shell, rape, the most cruel crime against the women, inflicts profound trauma on the victim. Nirbhaya case and Shyam Singh Hada v State of Rajasthan cases highlight the importance of the admissibility of dying declaration as evidence, as these statements were pivotal in delivering justice to them. Despite the absence of oaths and cross-examination, dying statements serve as powerful instruments in securing justice for victims of such atrocities. Dying declaration are a vital piece of evidence in rape cases, providing a voice for the victim and helping to secure justice. The admissibility of dying declarations as evidence is a crucial aspect of Indian law, and their importance cannot be overstated.
References:
[1] Indian Evidence Act 1872, s 32(1)
[2] Indian Penal Code 1860, s 375
[3] Indian Penal Code 1860, s 376
[4] Indian Penal Code 1860, s 228A
[5] Code of Criminal Procedure 1973, s 164
[6] Mukesh & Anr v State for NCT of Delhi & Ors AIR 2017 SC 2161
[7] Shyam Singh Hada v State of Rajasthan (2002) CRILJ 1437