The courts tend to take an insensitive stand on the multiple, and often contradictory, versions of victims/survivors of gender violence – whether it’s Zaheera Sheikh of the Best Bakery case or a woman widowed in the 1984 riots. Surely the trauma of the individual concerned should be taken into consideration?
The issue of multiple versions given at different points of time by the victim/survivor, especially in cases of gender violence, often surfaces in a criminal trial. Not only do the versions differ, at times they seemingly contradict each other. This occurs across the board from situations of large-scale gender violence, as happened in Gujarat in 2002, to individual incidents of rape.
The law seems to lack the tools to deal with and unravel the complexity of the situation in order to deliver justice. There is little space in the criminal justice system to appreciate the location of the survivor/victim and the pulls and pressures working on the individual. Be it a widow of the 1984 anti-Sikh riots, or Zaheera Sheikh of the Best Bakery case, or the student from Delhi University who was raped, changing versions spell doom for the case, the perpetrators go scot-free and justice goes out the window. In some instances, as with Zaheera and the witness against H K L Bhagat in the 1984 case, on top of the agony, suffering and loss undergone the survivor/victim ends up being prosecuted by the law.
Instead of a gender-sensitive approach, the atmosphere of the court, trial procedures and rules of evidence rob the victim/survivor of dignity and self-worth. The judicial system does not engage with the impact of trauma on the psyche, the effect on memory, the anxieties and fears unleashed in the individual by the subjection to violence. Neither does it seem inclined to deal with the complex web of emotions present in a survivor in situations of domestic violence. Worries about the future, emotional ties with the perpetrators, fears about the police, notions of expected behaviour, social stigma and other related factors impact the testimony given by the survivor.
In a mockery of justice, the law, instead of taking these realities on board and trying to devise a means to further the ends of justice, appears to head in the direction of prosecuting the victim/survivor/witness for perjury. The ‘benefit’ of multiple versions or inconsistencies by the victim goes in favour of the accused, who is often acquitted.
The gender-insensitive and hyper-technical approach of the courts, and the legal system as a whole, is reflected in the case of death by burns of Aruna Kumari. Aruna gave two dying declarations — one saying that her burns were the result of an accident and another that she had attempted suicide due to harassment, thus bringing it within the ambit of a ‘dowry death’. Even though harassment for dowry was established in Aruna’s case, the court disbelieved the second declaration, observing that a woman being harassed for dowry could also die accidentally. So, the court acquitted the husband and in-laws of the offence of dowry death. The judgment has been reported as Nallam V Stayanandham versus The Public Prosecutor, AP 2004 (2) SCALE 659.
Aruna Kumari married her maternal uncle on May 18, 1990. The husband and in-laws made constant demands on her parents, including a one-third share in their house. Aruna wrote several letters between May 12 and August 5, 1991, mentioning that she was being harassed. In fact, in a panchayat, Aruna’s husband and his father executed an agreement undertaking to look after Aruna properly and not harass her.
At about three in the afternoon, on July 12, 1992, Aruna doused herself with kerosene and set herself alight. She suffered severe burn injuries and was taken to the government hospital. In view of her condition, the doctor sent for a magistrate to record her dying declaration. The magistrate proceeded to do so after the doctor declared that the patient was fit to make a statement. The police and others attending on the patient were sent out of the room whilst Aruna’s statement was being recorded. In her declaration Aruna Kumari said that her burn injuries were due to an accident when her stove burst as she was making tea. It did not state that she had attempted suicide.
After the magistrate had recorded the dying declaration, a head constable from the local police station arrived at the hospital to record another statement. This statement also contained a certificate that the patient was fit to make a declaration. Aruna’s second dying declaration states that, unable to bear the dowry demands and harassment meted out by her husband and in-laws, she had poured kerosene over herself and set herself alight. As a result, she suffered severe burn injuries. Aruna Kumari died at around 7.30 pm the same day.
At the trial, six witnesses testified about the dowry demands and harassment by the husband and in-laws. Aruna Kumari’s letters to her parents explaining the nature of the demands and harassment were produced in court. A memorandum drawn up by the panchayatdars and the undertaking given by Aruna’s husband and his father to treat the woman properly also formed part of the evidence in court. The district and sessions judge at Rajahmundry convicted the husband and in-laws for dowry death (Section 304B of the IPC) and cruelty (Section 498-A of the IPC). The Andhra Pradesh High Court confirmed the convictions.
Subsequently, an appeal was lodged with the Supreme Court. It was argued on behalf of the accused that a dying declaration recorded by a magistrate in conformity with the requirements of the law should take precedence over an extra-judicial dying declaration made to a police officer. It was submitted that the dying declaration before the magistrate was unimpeachable and its contents could safely be relied on by the court. The first dying declaration speaks of the burns being caused by an accident. The entries of the doctor and those in the accident register also show that the deceased had suffered accidental burns. It was submitted that the witnesses who spoke about harassment and dowry demands were ‘interested’ persons and their evidence could not be relied upon to discount Aruna’s statement about the cause of her injury.
On behalf of the state it was submitted that a dying declaration recorded by a police officer was admissible and did not in any way have less evidentiary value. That if there was a contradiction between the two dying declarations then either or both should be rejected, or the court should accept the one more in tune with the other evidence. The oral and documentary evidence clearly established that the accused, right from the beginning of the marriage, had made demands for dowry and had mentally and physically harassed Aruna. Therefore, the dying declaration that conformed with the evidence produced by the prosecution should be preferred over the one that is contrary to the other evidence produced before the court.
The court observed that it had been established that the appellants were demanding dowry and harassing Aruna Kumari. That, as there was harassment and the death occurred within seven years of marriage, there was a presumption of dowry death. Therefore the onus was on the accused to establish that Aruna Kumari’s death was an accidental death and not suicide. If the death were suicide, it would fall within the category of a dowry death for which the accused would be liable. On behalf of the accused, reliance was placed on the first dying declaration to show that the death was accidental and not connected to the dowry demands and harassment.
The Supreme Court scrutinised the circumstances surrounding the first dying declaration in order to assess the veracity of its contents. The judgment observed that it had not been suggested that the doctor had made the entries at the instance of the husband and in-laws. The court concluded that it was reasonable to infer that the information was given to the doctor either by the victim herself or by another relative, not the husband or the in-laws.
The court observed that there was nothing in the doctor’s testimony to indicate that Aruna’s statement had been made under influence from any source, or that she was not in a proper condition to make the statement. On the basis of the questions put and the replies given by Aruna, as recorded by the magistrate, the court concluded that the statement was made voluntarily and reflected the true state of affairs.
The trial court finding with regard to the first dying declaration, that it may have been made out of confusion and love and affection towards her husband and her in-laws who are also her grandparents, was also rejected. The court, instead of grappling with the fact that in such situations there are a number of contradictory emotions swirling in the mind of the survivor/victim, seems to have adopted a simplistic reasoning for its rejection. According to the judgment, if Aruna had given an incorrect statement to the magistrate out of love and affection, then what was the explanation for her implicating the same accused after about 10 minutes in a statement to the police?
The judgment categorically declares that unless there is material to show that a statement, in the present case the dying declaration recorded by the magistrate, is given either under pressure from the accused or when the victim is not in a proper state of mind or some such valid reason, it cannot be rejected. A statement or declaration cannot be rejected merely because it helps the defence of the accused. The court observed that a harassed wife could get burnt accidentally, in which case her death could not be attributed to harassment and would not fall within the category of a dowry death. The court rejected the sound proposition that a dying declaration that is supported by other evidence should be preferred over one that is contradictory to the evidence.
The apex court observed that the dying declaration recorded by the magistrate could not be disbelieved merely because it did not conform with the prosecution’s case as to the harassment meted out to Aruna Kumari. Assessing the evidentiary value, the court observed that the material clearly showed that the statement made to the magistrate had not been made under pressure and had been given by a person who was in a fit mental state. Therefore, the declaration recorded by the head constable could not be given preference over the one recorded by the magistrate.
The judgment declares that Aruna Kumari’s death was related to burn injuries suffered accidentally. Though there is a presumption of dowry death in a case where the death occurred within seven years of marriage, the court held that the first dying declaration recorded by the magistrate, stating the burns to be accidental, takes the case out of the category and the presumption against the accused stands rebutted. Aruna’s husband and in-laws were held to be not guilty of dowry death under Section 304B of the IPC.
However, the court held that frequent demands for dowry and the harassment of Aruna Kumari because of non-payment stand established. Therefore, though acquitting the husband and in-laws of the charge of dowry death, the Supreme Court confirmed the conviction under Section 498-A of the IPC for cruelty to a woman by her husband or his relatives.
