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Absent victim prosecution

  • Legislation should provide for the possibility for prosecution of appropriate cases despite the inability or unwillingness of the complainant/survivor to testify. This approach ensures the safety of the complainant/survivor yet offers the support of the criminal justice system. (See: UN Handbook, 3.9.5) Legislation should require prosecutors to consider all evidence in a case that might support or corroborate the statement of the complainant/survivor, including evidence of a history of abuse.
  • Legislation should address dowry deaths where the victim is deceased and provide for the admissibility of and guidelines governing dying declarations these cases. For example, India’s Evidence Act allows written or verbal statements of relevant facts by a person who is dead, cannot be located, or is incapable of giving evidence as relevant facts in cases regarding 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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (Article 32).     

  • Additionally, dying declarations may be admissible under Article 157, “Former statements of witness may be proved to corroborate later testimony as to same Fact:” In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”
    (See: Section on Duties of Police Officers; Section on Evidence)

 

Promising Practice: In Pushpawati v. State, (1986) 2 Cr LJ 1532, the victim of a dowry death made three dying declarations at her brother’s home, to a police officer in the hospital and to the sub-divisional magistrate. Although the second declaration failed to name the accused, the Delhi High Court found sufficient prima facie evidence that a homicide took place to deny the accused bail

 

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