-

LAXMAN A

v.

STATE OF MAHARASHTRA

AUGUST 27, 2002

[G.B. PATTANAIK, M.B. SHAH, DORAISWAMY RAJU, S.N. B

VARIAVA AND D.M. DHARMADHIKARI, JJ.]

Evidence Act, 1872-Section 32-Dying dec/aratio11-Evidentiary value

of in absence of medical certification that deceased was in a fit state of mind C

to make the dec/aratio11-Held, where it is proved by the testimony of witnesses

that the dec/arant was fit to make the statement, such declaration can be acted

upon

if voluntary and truthfal.

Appellant-accused was convicted by Courts below, relying on the

dying declaration

of the deceased, the evi.dence of the Magistrate before D

whom the statement was made and on the certificate of the doctor.

In appeal to this Court appellant, relying on

Paparmbaka Rosamma 's

case, contended that the dying declaration was not reliable since the doctor

had not certified to the effect that the patient was

in a fit state of mind to

make

statement. Respondent, relying on Koli Chuni/al

Savji's case, E

contended that in the absence of such certification the dying declaration

could not be ignored if materials

on record indicate that the deceased was

conscious

and capable of making the statement. Since the two judgments

relied

on by the parties were contradictory to each other, the question of

reliability of dying declaration was referred to the Constitution Bench.

F

Answering the question, the Court

HELD:

1. Normally 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 G

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 can be by any adequate method

of communication, whether by words

or by signs or otherwise, provided the indication is positive and definite. H

697

698 SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A 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

B dying declaratiQn 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

C 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

D the voluntary and truthful nature of the declaration can be established

otherwise. (700-F,

G, H; 701-A, B, CJ

2. It is a hyper-technical view that the certification of the doctor was

to

the effect that the patient is conscious and there was no certification

E 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 he was satisfied that the patient

was in a

fit state of mind whereafter he recorded the dying declaration.

(702-DJ

p Kofi Chunilal Savji and Another v. State of Gujarat, (1999) 9 SCC 562,

affirmed.

Paparambaka Rosamma and Ors. v. State of Andhra

Pradesh, [1999) 7

sec 695, overruled.

G Ravi Chander v. State of Punjab, [1998) 9 SCC 303 and Harjeet Kaur

v. State of Punjab •. (1999) 6 SCC 545, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

608 of 2001.

H From the Judgment and Order dated 13/14th October, 1999 of the

f

LAXMAN v. STATE OF MAHARASHTtlA [G.B. PATTANAIK, J.j 699

Bombay High Court in Crl.A. No. 288 of 1994.

S. Muralidhar, Advocate (A.C.) for the Appellants.

U.U. Lalit, N.V. Raghupathy, Ravi Adsure and S.S. Shinde for the

Respondent.

The Judgment

of the Court was delivered by

A

B

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 C

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 D

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 E

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 F

statement, the dying declaration could not have been accepted by the court

to fonn the sole basis of conviction.

On behalf of the counsel appearing for

the St~te another three Judges bench decision of this court in the case of Kofi

Chunilal Savji and Anr. v. State of Gujarat, [l 999] 9 SCC 562 was relied

upon wherein this court has held that

if the materials on record indicate that G

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 H

700 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A 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.

B 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.

c

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

D 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

~onfidence of the

E

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

f 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

a~y adequate method of communication whether by words or

G 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

H it is usual to call a magistrate, if available for recording the statement of a

-

•.

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LAXMAN v. STATE OF MAHARASHTRA [G.B. PATTANAIK, J.]701

man about to die. There is no requirement of law that a dying declaration A

must necessarily be made to a magistrate and when such statement is recorded

by a magistrate there ·is no specified statutory fom! 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 B

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 C

can be established otherwise.

Bearing in mind the aforesaid principle, let us now examine the two

decisions oftf1e court which persuaded the bench to make the reference to the

Constitution Bench.

Jn Paparambaka Rosamma and

Ors. v. State of Andhra

Pradesh. [

t 999] 7 sec 695 the. dying declaration in question had been D

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

E

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 F

Kofi Chuni/al

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

G

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

H

702 SUPREME COURT REPORTS [2002] SUPP. t S.C.R.

A 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

B 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

C in Paparambaka Rosamma and

Ors. v. State of Andhra Pradesh, [1999) 7

sec 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

D 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

E 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

Kofi Chunilal Savji and Anr. v.

State of Gujarat, [1999] 9 SCC 562 case.

p 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.

K.K.

T. Referred to Justice

Shah Bench.