Dying Declaration by Rape Victims: A Critical Analysis

Abstract

Dying Declarations are the statements made by dying person as to injuries which culminated in his death or the circumstances under which the injuries were inflicted. Statements made by deceased long prior to the occurrence resulting in death are not Dying Declaration and not admissible in Indian Evidence Act. The general ground of admissibility of the evidence is that no better evidence is to be had. Dying declaration is based on the maxim Nemo moriturus praesumitur mentire which means a man will not meet his maker with lie in his mouth. It operates as an exception to the hearsay rule . Hearsay evidence is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the oath and cross examination. They are not given any importance in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. It is an exception because if this evidence is not considered the very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. A Dying Declaration as envisaged by S 32 of the Indian Evidence Act need not necessarily be from person who is dying at the time of making the statement. In addition, at the time of making such declaration, it is necessary that he or she should know that there is impending death. In other words, at the time of making such declaration it is legal mandate that such person must entertain expectation of death. A rule peculiar to criminal cases is the exception to the rule respecting hearsay evidence which renders dying declarations as to the cause of death admissible in trials for murder and manslaughter. The earliest emphatic statement of it is to be found in woodcock's case, decided in 1789. This case refers to decision in 1720 and to the case of R v. Reason and Tranter, decided in 1722. That case, however say nothing as to any limitation on the rule. A series of cases from 1678 to 1765 shows that during that period declarations of deceased persons as to the cause of their death were admitted even though the declarants had hopes of recovery when they were made. Dying Declaration is statement made by person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during trial in certain cases. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As result, it is an exception to the Hearsay Rule, which prohibits the use of statement made by someone other than the person who repeats it while testifying during trial, because of its inherent untrustworthiness. If the person who made the dying declaration had the slightest hope of recovery, no matter how unreasonable, the statement is not admissible into evidence. A person who makes dying declaration must, however, be competent at the time he or she makes statement, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of the accused. As general rule, courts refuse to admit dying declarations in civil cases, even those for Wrongful Death, or in criminal actions for crimes other than the Homicide of the decedent. A dying Declaration is fairly well crystal by judicial decisions. But before it is relied on, it must pass test of reliability as it is statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross-examination to test it genuineness or veracity.