Dying declarations: India
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What are included in dying declarations?
Not just words, gestures also valid: SC
The Supreme Court upheld and relied heavily on three sets of Nirbhaya's dying declarations, including the one made mostly through gestures, nods and jottings as she was not in a position to speak or write properly , to confirm the death sentences of the four convicts.
A bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. It refused to give credence to the submission made by the convicts that the dying declarations not be relied on.
Three dying declarations were recorded. The first by a doctor when she was admitted to hospital on December 16, 2012, and the second on December 21 by the SDM in which she gave exact details.
The third was recorded by a metropolitan magistrate on December 25, mostly through gestures. Challenging the validity of her dying declara tions, the convicts contended there were discrepancies in her statements and the third account through gestures was not videographed. The court rejected the plea.
“The contention that the third dying declaration made through gestures lacks credibility and that the same ought to have been videographed, in our view, is totally sans substance. The dying declaration recorded on the basis of nods and gestures is not only admissible but also possesses evidentiary value, the extent of which shall depend upon who recorded the statement,“ the bench said.
“In the present case, this caution was aptly taken, as the person who recorded her dying declaration was the metropolitan magistrate and he was satisfied himself as regards the mental alertness and fitness of the prosecutrix, and recorded her dying declaration by noticing her gestures and her own writings,“ the bench said.
The court held that all three dying declarations were voluntary , consistent and trustworthy , satisfying the test of reliability. It said the dying declarations are well corroborated by medical and scientific evidence and supported by the testimony of her male friend who was with her on that night.
“In the case of rape and sexual assault, the evidence of prosecutrix is very crucial and if it inspires confidence of the court, there is no requirement of law to insist upon corroboration of the same for convicting the accused.Courts are expected to act with sensitivity and appreciate the evidence of the prosecutrix in the background of the entire facts of the case and not in isolation,“ the court said.
“Courts should not attach undue importance to discrepancies where the contradictions sought to be brought up from the evidence of the prosecutrix are immaterial and of no consequence. Minor variations in the testimony of the witnesses are often the hallmark of truth of the testimony . Trivial discrepancies ought not to obliterate an otherwise acceptable evidence,“ it said.
“In our view, all the three dying declarations are consistent with each other and well corroborated with other evidence and the trial court as well as the high court correctly placed reliance upon the dying declarations of the prosecutrix to record the conviction,“ it said.
