Facts of the Case
A woman, who was a prostitute by profession, was attacked in her house while she was asleep. Her throat was slit with a razor, causing severe injuries that rendered her incapable of speech.
She was immediately shifted to a hospital. While she was under treatment and in a critical condition, her mother, the attending surgeon, and a Judicial Magistrate attempted to ascertain the identity of the assailant. Due to the injury to her throat, she could not speak, but she was conscious and able to respond by signs and gestures of her hand.
When certain names were mentioned, she indicated negatively, and when the name of the accused was mentioned, she gave a positive sign. Subsequently, the victim succumbed to her injuries. The question arises regarding the evidentiary value of such signs and gestures under the Indian Evidence Act, 1872.
Issues in the Case
- Whether signs and gestures made by a deceased person can amount to a valid dying declaration?
- Whether a dying declaration must necessarily be oral or written to be admissible?
- What is the evidentiary value of non-verbal responses given by the deceased identifying the accused?
- Can such signs and gestures form the sole basis of conviction?
Legal Principles Covered to Support Case Proceedings and Judgments
A. Dying Declaration – Section 32(1) of the Indian Evidence Act, 1872
Section 32(1) provides that statements made by a person as to:
- The cause of his death, or
- Any of the circumstances of the transaction which resulted in his death,
are relevant facts, when the person making the statement is dead.
The principle is based on nemo moriturus praesumitur mentire — a person on the verge of death is presumed not to lie.
B. Form of Dying Declaration – Oral, Written, Signs or Gestures
The Evidence Act does not prescribe any specific form for a dying declaration. Indian courts have consistently held that a dying declaration can be made:
- Orally,
- In writing, or
- By signs and gestures,
provided the declarant was:
- In a fit physical and mental condition, and
- The declaration was properly understood and recorded.
In the present case, the deceased was conscious and able to understand questions and reply through gestures.
C. Persons Recording the Declaration
A dying declaration can be made before:
- A Magistrate (preferred),
- A doctor,
- A relative, or
- Any other person.
Here, the declaration was made in the presence of a Magistrate and a medical professional, lending greater authenticity and reliability.
D. Evidentiary Value and Judicial Interpretation
Courts have held that:
- A dying declaration made through signs and gestures is admissible in evidence,
- If it is clear, unambiguous, and inspires confidence,
- It can form the sole basis of conviction without corroboration.
However, caution is required where:
- The responses are vague or ambiguous, or
- The interpretation of gestures is doubtful.
In the given case:
- Negative gestures to other names, and
- Positive gesture to the accused’s name,
form a coherent pattern, clearly indicating identification.
Possible Judgment
The Court is likely to hold that:
- The signs and gestures made by the deceased woman identifying the accused amount to a valid dying declaration under Section 32(1) of the Indian Evidence Act, 1872.
- A dying declaration need not be oral or written, and communication by signs and gestures is legally permissible.
- Since the deceased was conscious, and the declaration was made in the presence of a Magistrate and surgeon, it carries high evidentiary value.
- If the court is satisfied that the signs and gestures were properly understood and correctly recorded, the declaration can be relied upon to convict the accused, even without independent corroboration.
Final Decision
The signs and gestures made by the deceased woman identifying the accused are relevant, admissible, and possess strong evidentiary value as a dying declaration under the Indian Evidence Act, 1872.
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