LAXMANversusSTATE OF MAHARASHTRA

-                                LAXMAN
                                    v.
                                                                                      A
                          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               f

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

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

            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
c   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
    court in its truthfulness and correctness. The court, however has to always be
E   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
•.        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
     declaration must be satisfied that the deceased was in a fit state of mind.
                                                                                         B

     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 ofAndhra
  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.