G.B. PATTANAIK, J. – In this criminal appeal, the conviction of the accused-appellant is
based upon the dying declaration of the 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-Judge Bench of this
Court, the counsel for the appellant relied upon the decision of this Court in Paparambaka
Rosamma v. State of A.P. [(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-Judge
Bench decision of this Court in the case of Koli Chunilal Savji 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.
2. At the outset we make it clear that we are only resolving the so-called conflict between
the aforesaid three-Judge Bench decision of this Court, whereafter 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.
3. 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 the deathbed 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 courts insist
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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 always to 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 looks 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 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 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.
4. 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 v. State of A.P. 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. The 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 had also 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 v. State of Gujarat , 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 an in
Ravi Chander v. State of Punjab [(1998) 9 SCC 303], wherein it had been observed that for
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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 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.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit
Kaur v. State of Punjab [(1999) 6 SCC 545] 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 v.
State of A.P. to the effect that
“(I)n 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
hypertechnical 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 especially
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 whereafter he recorded the dying declaration. Therefore, the judgment of this Court in
Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we
affirm the law laid down by this Court in a Koli Chunilal Savji v. State of Gujrat.
6. 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.
