Unnao rape victim's 'dying declaration' : Why does it incriminate the accused?

Creating shockwaves across the county the Unnao victim breathed her last at 11:40 PM on Friday. Before she was put on the ventilator she expressed her desire to live and wanted death for her murderers.

In her statement to Sub Divisional Magistrate Dayashankar Pathak, at Unnao district hospital the victim had said she was abducted and raped by Shivam Trivedi and Shubham Trivedi in December 2018 and the trial of the case is going on in a Raebareli court. She said when she was en route to court, but when she reached the Gaura turn, the accused attacked her and set her on fire.

This statement could also be read as a dying declaration and seen as incriminating evidence against the accused, to ensure justice is done. 

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LAW OF DYING DECLARATION

Dying Declaration means a statement- written or verbal, of relevant facts made by a person, who is dead. A  dying declaration is considered credible and trustworthy evidence. This is based on the maxim ‘ nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with lie in his mouth. Indian law recognizes this fact that ‘a dying person seldom lies'.

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Section 32 in The Indian Evidence Act, 1872

32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant — Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

• When it relates to the cause of death —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

• Made in course of business —When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

• Against interest of maker —When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

• Gives opinion as to public right or custom, or matters of general interest —When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

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• Relates to the existence of relationship —When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

• Is made in will or deed relating to family affairs —When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

• In document relating to transaction mentioned in section 13, clause (a) —When the statement is contained in any deed, will or any other document which relates to any such transaction as is mentioned in section 13, clause (a).

• Is made by several persons, and expresses feelings relevant to matter in question. —When the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question. 

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The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that ‘the principle on which a dying declaration is admitted in evidence is indicated in latin- maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his mouth'. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

UNNAO CASE 

Her last recorded statement, if seen as a dying declaration, in a court of law, will ensure the culprits meet their rightful fate.