CASE NO.: Appeal (crl.) 608 of 2001 PETITIONER: LAXMAN RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 27/08/2002 BENCH: G.B. PATTANAIK & M.B. SHAH & DORAISWAMY RAJU & S.N. VARIAVA & D.M. DHARMADHIKARI JUDGMENT:
JUDGMENT
2002 ( 1 ) Suppl. SCR 697
The Judgment of the Court was delivered by
PATTANAIK, J. In this Criminal Appeal, the conviction of the accused
appellant is based upon the dying declaration of the deceased which was
recorded by the judicial magistrate (P.W.4). The learned sessions Judge as
well as the High Court held the dying declaration made by the deceased to
be truthful, voluntary and trustworthy. The magistrate in his evidence had
stated that he had contacted the patient through the medical officer on
duty and after putting some questions to the patient to find out whether
she was able to make the statement; whether she was set on fire; whether
she was conscious and able to make the statement and on being satisfied he
recorded the statement of the deceased. There was a certificate of the
doctor which indicates that the patient was conscious. The high Court on
consideration of the evidence of the magistrate as well as on the
certificate of the doctor on the dying declaration recorded by the
magistrate together with other circumstances on record came to the
conclusion that the deceased Chandrakala was physically and mentally fit
and as such the dying declaration can be relied upon. When the appeal
against the judgment of the Aurangabad bench of the Bombay High Court was
placed before a three Judges bench of this court, the counsel for the
appellant relied upon the decision of this court in the case of Paparambaka
Rosamma and Ors. v. State of Andhra Pradesh, [1999] 7 SCC 695 and contended
that since the certification of the doctor was not to the effect that the
patient was in a fit state of mind to make the statement, the dying
declaration could not have been accepted by the court to form the sole
basis of conviction. On behalf of the counsel appearing for the State
another three Judges bench decision of this court in the case of Koli
Chunilal Savji and Anr. v. State of Gujarat, [1999] 9 SCC 562 was relied
upon wherein this court has held that if the materials on record indicate
that the deceased was fully conscious and was capable of making a
statement, the dying declaration of the deceased thus recorded cannot be
ignored merely because the doctor had not made the endorsement that the
deceased was in a fit state of mind to make the statement in question.
Since the two aforesaid decisions expressed by two benches of three learned
Judges was somewhat contradictory the bench by order dated 27.7.2002
referred the question to the Constitution Bench.
At the outset we make it clear that we are only resolving the so-called
conflict between the aforesaid three Judges bench decision of this court,
where-after the criminal appeal will be placed before the bench presided
over by Justice M.B. Shah who had referred the matter to the Constitution
Bench. We are, therefore, refraining from examining the evidence on record
to come to a conclusion one way or the other and we are restricting our
considerations to the correctness of the two decisions referred to supra.
The juristic theory regarding acceptability of a dying declaration is that
such declaration is made in extremity, when the party is at the point of
death and when every hope of this world is gone, when every motive to
falsehood is silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great
caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances which
may affect their truth. The situation in which a man is on death bed is so
solemn and serene, is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Since the accused has no power of cross-
examination, the court insist that the dying declaration should be of such
a nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however has to always be on guard to see that the
statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further decide
that the deceased was in a fit state of mind and had the opportunity to
observe and identify the assailant. Normally, therefore, the court in order
to satisfy whether the deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state to
make the declaration, the medical opinion will not prevail, nor can it be
said that since there is no certification of the doctor as to the fitness
of the mind of the declarant, the dying declaration is not acceptable. A
dying declaration can be oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will suffice
provided the indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and is reduced to
writing by someone like a magistrate or a doctor or a police officer. When
it is recorded, no oath is necessary nor is the presence of a magistrate is
absolutely necessary, although to assure authenticity it is usual to call a
magistrate, if available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must necessarily be
made to a magistrate and when such statement is recorded by a magistrate
there is no specified statutory form for such recording. Consequently, what
evidential value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What is
essentially required is that the person who records a dying declaration
must be satisfied that the deceased was in a fit state of mind. Where it is
proved by the testimony of the magistrate that the declarant was fit to
make the statement even without examination by the doctor the declaration
can be acted upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a rule
of caution and therefore the voluntary and truthful nature of the
declaration can be established otherwise.
Bearing in mind the aforesaid principle, let us now examine the two
decisions of the court which persuaded the bench to make the reference to
the Constitution Bench. In Paparambaka Rosamma and Ors. v. State of Andhra
Pradesh, [1999] 7 SCC 695 the dying declaration in question had been
recorded by a judicial magistrate and the magistrate had made a note that
on the basis of answers elicited from the declarant to the questions put he
was satisfied that the deceased is in a fit disposing state of mind to make
a declaration. Doctor had appended a certificate to the effect that the
patient was conscious while recording the statement, yet the court came to
the conclusion that it would not be safe to accept the dying declaration as
true and genuine and was made when the injured was in a fit state of mind
since the certificate of the doctor was only to the effect that the patient
is conscious while recording the statement. Apart from the aforesaid
conclusion in law the court also had found serious lacunae and ultimately
did not accept the dying declaration recorded by the magistrate. In the
latter decision of this court in Koli Chunilal Savji and Anr. v. State of
Gujarat, [1999] 9 SCC 562 it was held that the ultimate test is whether the
dying declaration can be held to be a truthful one and voluntarily given.
It was further held that before recording the declaration the officer
concerned must find that the declarant was in a fit condition to make the
statement in question. The court relied upon the earlier decision. In Ravi
Chander v. State of Punjab, [1998] 9 SCC 303 wherein it had been observed
that for not examining by the doctor the dying declaration recorded by the
executive magistrate and the dying declaration orally made need not be
doubted. The magistrate being a disinterested witness and is a responsible
officer and there being no circumstances or material to suspect that the
magistrate had any animus against the accused or was in any way interested
for fabricating a dying declaration, question of doubt on the declaration,
recorded by the magistrate does not arise.
The court also in the aforesaid case relied upon the decision of this court
in Harjeet Kaur v. State of Punjab, [1999] 6 SCC 545 case wherein the
magistrate in his evidence had stated that he had ascertained from the
doctor whether she was in a fit condition to make a statement and obtained
an endorsement to that effect and merely because an endorsement was made
not on the declaration but on the application would not render the dying
declaration suspicious in any manner. For the reasons already indicated
earlier, we have no hesitation in coming to the conclusion that the
observations of this court in Paparambaka Rosamma and Ors. v. State of
Andhra Pradesh, [1999] 7 SCC 695 to the effect that “in the absence of a
medical certification that the injured was in a fit state of mind at the
time of making the declaration, it would be very much risky to accept the
subjective satisfaction of a magistrate who opined that the injured was in
a fit state of mind at the time of making a declaration” has been too
broadly stated and is not the correct enunciation of law. It is indeed a
hyper-technical view that the certification of the doctor was to the effect
that the patient is conscious and there was no certification that the
patient was in a fit state of mind specially when the magistrate
categorically stated in his evidence indicating the questions he had put to
the patient and from the answers elicited was satisfied that the patient
was in a fit state of mind where-after he recorded the dying declaration.
Therefore, the judgment of this court in Paparambaka Rosamma and Ors. v.
State of Andhra Pradesh, [1999] 7 SCC 695 must be held to be not correctly
decided and we affirm the law laid down by this court in Koli Chunilal
Savji and Anr. v. State of Gujarat, [1999] 9 SCC 562 case.
The records of the Criminal Appeal may now be placed before the bench
presided over by Shah, J from which court the reference has been made.