New Delhi: The Supreme Court on Friday said a victim’s dying declarations made through signs, gestures and nods are admissible as evidence, as it upheld the death sentence awarded to four convicts in the 2012 Delhi gangrape case.
The fate of the convicts—Pawan Kumar, Vinay Sharma, Mukesh and Akshay Kumar—was sealed by scientific and forensic evidence such as DNA, fingerprints and bite marks which the apex court termed as accurate.
A three-judge Supreme Court bench, headed by justice Dipak Misra and comprising R. Banumathi and Ashok Bhushan, said all three dying declarations of the Delhi Gangrape victim Nirbhaya are “consistent with each other" and well corroborated with other evidence. 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," the bench said.
The bench said that in this case, caution was aptly taken as the dying declaration was recorded by a magistrate, who was satisfied with mental alertness and fitness of the victim.
Consistent dying declarations of the victim was one of the reasons which the Supreme 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, adding that the victim’s dying declarations were corroborated with 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 incident in her statements and also took the names of all the six men who had raped 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 victim’s versions, where she had taken names of the accused, were tutored and cannot form the basis of conviction.
“This argument, however, is completely unjustified in light of the medical condition of the prosecutrix when she was brought to the hospital," the bench said. “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 substance.
“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.
Meanwhile, forensic evidence in the Delhi gangrape case sealed the fate of the four convicts awarded death sentence.
The SC bench said while DNA report “cogently linked" each of these accused with the victim and the crime scene, the fingerprint analysis “incontrovertibly proves" that one of the convicts, Vinay Sharma, was present in the bus at the time of the barbaric incident.
Regarding odontology, a branch of forensic science on bite-mark analysis, the bench said the report placed on record was “wholly credible" because of the matching of bite marks with the tooth structure of the convicts and there was no reason to view them with any suspicion.
The bench said DNA technology not only provided guidance to investigation, but also supplied the court accrued information about the “tending features" of identification of criminals, and such evidence was increasingly relied upon by the courts.
“The DNA profiling, which has been done after taking due care for quality, proves to the hilt the presence of the accused persons in the bus and their involvement in the crime. The submission that certain samples were later taken from the accused and planted on the deceased to prove the DNA aspect is noted only to be rejected because it has no legs to stand upon," the bench said.
There were various “white bite marks" on the victim’s body and such analysis report plays an important role in the criminal justice system. The apex court said “there is no reason to declare the DNA report as inaccurate, especially when it clearly links the accused persons with the incident".
The bench also said that in India, like other countries, DNA evidence was increasingly being relied upon by the courts and after 2005 amendment in the Criminal Procedure Code, DNA profiling has now become a part of the statutory scheme.
“After establishing the identities of each of the accused persons, the informant (victim’s friend) and the prosecutrix (victim) through DNA analysis, the DNA profiles generated from the remaining samples, where the identity of biological material found thereon needed to be ascertained, were matched with the DNA profiles of the prosecutrix, the informant and the accused, generated earlier from known samples," it noted. “Such an analysis cogently linked each of the accused with the victims as also with the crime scene."
The bench referred to the statement of Dr B.K. Mohapatra, one of the prosecution witnesses in the case, and said he has testified that once a DNA profile was generated, its accuracy is 100%.
The apex court observed that the defence counsel had not raised substantial grounds to challenge the DNA report during the cross-examination of Mohapatra before the trial court and there was “no reason to declare the DNA report as inaccurate" especially when it clearly links the convicts with the crime.
It also dealt with the contentions of defence counsel who had argued that DNA test cannot be treated as accurate as the victim had undergone blood transfusion during the treatment and when there was mixing of blood, DNA profiling was likely to differ.