Dec 16 gangrape victim's dying declarations consistent: SC

Dying declarations made through signs, gestures and nods are admissible as evidence, the Supreme Court said today, putting its stamp of approval to three such consistent statements made by the 23-year-old victim in the December 16, 2012 gangrape-cum-murder case.
A three-judge bench headed by Justice Dipak Misra said proper care has to be taken at the time of recording the statement and the court ought to be cautious that the person recording the dying declaration is able to correctly notice as to what the victim means by replying through gestures or nods.
The bench also comprising justices R Banumathi and Ashok Bhushan said all the three dying declarations of the victim are "consistent with each other" and well corroborated with other evidence and the trial court and Delhi High Court has "correctly" placed reliance upon her dying declarations to record the conviction.

"Appreciating the third dying declaration recorded on the basis of gestures, nods and writings..., we have no hesitation in holding that the dying declaration made through signs, gestures or by nods are admissible as evidence, if proper care was taken at the time of recording the statement," it said.
The bench said that in this case, caution was aptly taken as the dying declaration was recorded by a magistrate who was satisfied regarding the mental alertness and fitness of the victim, a paramedical student, and recorded her statement by noticing her gestures and by her own writings.
Consistent dying declarations of the woman was one of the reasons which the apex court gave while upholding the death penalty of the four convicts.

The apex court rejected the argument of defence counsel that the victim could not have given any dying declaration because of her health condition.

It said the witnesses who have stated about the dying declarations have stood embedded to their version and there was nothing to discredit them.
It said the woman's dying declarations were corroborated with the oral and documentary evidence and also enormously with medical evidence.
The first dying declaration was made by the victim before the treating doctor Rashmi Ahuja, the second one before Sub- Divisional Magistrate Usha Chaturvedi and the third before Metropolitan Magistrate Pawan Kumar.

The victim had gave the entire description of the gory incident in her statements and also took the names of all the six men who had ravished her as she had heard them calling each other with their names.
After going through the three statements, the court came to the conclusion that they were consistent with each other.
The counsel for Delhi Police had contended that all the three dying declarations recorded at the instance of the victim were consistent and corroborated by medical and scientific evidence, as well as by the testimony of the woman's friend who was with her at the time of incident.

The defence counsel and amicus curiae were critical of the dying declarations, saying they should not be considered as they do not inspire confidence because of inconsistencies and improvements in them.
The court rejected the defence counsel's argument that the woman's versions, where she had taken names of accused, were tutored and cannot form the basis of conviction.
"This argument, however, is completely unjustified in the light of the medical condition of the prosecutrix when she was brought to the hospital," the bench said.
It said a dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction.

"If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while admitting a dying declaration, must be vigilant towards the need for 'Compos Mentis Certificate' (sanity, mentally sound) from a doctor as well as the absence of any kind of tutoring," it said.
The bench said a mere omission on the victim's part to state the entire factual details of the incident in her very first statement "does not make her subsequent statements unworthy".
It said the defence counsel's contention that the third dying declaration made through gestures lacks credibility and it should have been videographed, lacks susbstance.

The court said 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.
It said the third dying declaration recorded by the magistrate by nods and gestures and writings, inspired confidence and has been rightly relied upon by the trial court and the high court.
"Videography of the dying declaration is only a measure of caution and in case it is not taken care of, the effect of it would not be fatal for the case and does not, in any circumstance, compel the court to completely discard that particular dying declaration," it said.