OM PAL SINGHversusSTATE OF U.P.

                [2010] 13 (ADDL) S.C.R. 558


A                        OM PAL SINGH
                                v.
                         STATE OF U.P.
                  (Criminal Appeal 973 of 2003)
                       NOVEMBER 09, 2010
B
      [B. SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.)

      Penal Code, 1860: s. 302 - Murder - Previous enmity
C between deceased and accused - Deceased shot dead by
  accused - Conviction based on evidence of eyewitnesses and
  dying declaration - Interference with - Held: The
  eyewitnesses gave consistent version of various incidents
  which precipitated the enmity between the deceased and the
D accused - The evidence of eyewitnesses was clear and
  consistent with the medical evidence and dying declaration
  - No reason to interfere with the order of conviction - Evidence
  - Dying declaration.

E      Evidence: Dying declaration - Reliability on - Held: If the
  statement made by injured was candid, coherent and
  consistent, then there is no reason to disbelieve it - Merely
  because the dying declaration was not in question-answer
  form would not render it unreliable - In the circumstances,
  absence of certificate of fitness by doctor would also not be
F sufficient to discard it - Penal Code, 1860 - s. 302.
      The prosecution case was that there was previous
  enmity between the victim-deceased and the accused-
  appellant. Few months prior to the incident also, the
G appellant had tried to kill the deceased but at the time the
  deceased had managed to escape. On the day of incident,
  the deceased was on his way accompanied with PW-2
  and PW-3. The appellant came there on a motorcycle
  armed with a double barrelled gun. The deceased was
H                                558
         OM PAL SINGH v. STATE OF U.P.                 559

about 15-20 paces ahead of the rest. When the deceased       A
saw the appellant advancing towards him, he tried to run.
The appellant fired one shot from his double barrelled gun
at the deceased. The deceased got injured and fell down.
The appellant thereafter ran away leaving behind his
motorcycle. PW-2 and others took the deceased to the         8
hospital. Thereafter they lodged the FIR. PW-6, the
Tehsildar Magistrate recorded the dying declaration. After
few hours, the deceased died. The trial court convicted
the appellant under Section 302, IPC. The High Court
upheld the order of conviction. The instant appeal was       C
filed challenging the order of the High Court.

    Dismissing the appeal, the Court
    HELD: 1. PW2 and PW3 gave clear and consistent
eye-witness account. They narrated the previous incident 0
of disharmony between the appellant and the deceased.
They also adverted to the previous attempts by the
appellant to harm the deceased. The entire incident of
shooting was graphically described by the two
witnesses. They clearly stated that they did not chase the E
appellant fearing for their own life. The courts below held
that both PW-2 and PW-3 had given a consistent version
of the various incidents which precipitated the enmity
between the deceased and the appellant. Both the courts
also noticed that the FIR was initially registered under
Section 307 IPC on the basis of the statement given by F
PW-2. In the FIR, this witness narrated the history of the
animosity between the deceased and the appellant.
Therefore, both the trial court as well as the High Court
correctly concluded that the motive was not introduced
only at the time of the trial, in Court. Both the trial court G
as well as the High Court had held that the medical
evidence was consistent with the ocular evidence. There
is no reason to interfere with the findings recorded by
both the courts. [Paras 15, 19, 22] [573-G-H; 573-A-B; 567-
B-D; 570-B-C]                                                 H
    560   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A       "Modi's Medical Jurisprudence and Toxicology" (19th Ed.
    Pg. 221 - referred to.
         2. The Tehsildar, who recorded the dying declaration
    appeared as PW-6. He clearly stated that although no
    doctor was present in the hospital, he was informed by
B   the pharmacist that the deceased was in a fit state to
    make a statement. He, thereafter, isolated the injured and
    recorded his statement. He further stated that he wrote
    down word by word what the deceased had stated. The
    contents of the statement were read to the injured who
C   stated that he understood and accepted the same. Only
    thereafter, he had put his thumb impression on the
    statement. It is undoubtedly true that the statement was
    not recorded in the question and answer form. It is also
    correct that at the time when the statement was recorded
D   the deceased was in a "serious condition". The trial court
    as well as the High Court correctly accepted that the
    dying declaration was an acceptable piece of evidence.
    Merely because, it was not in question and answer form
    would not render the dying declaration unreliable. The
E   absence of a certificate of fitness by the doctor would not
    be sufficient to discard the dying declaration. The
    certification by ~h~ doctor is a rule of caution, which was
    duly observed !iy the Tehsildar/Magistrate, who recorded
    the statement. The statement made by the injured was
F   candid, coherent and consistent. There is no reason to
    d!sbelieve the same. Therefore, there is no reason to differ
    with the conclusions arrived at by the trial court and the
    High Court with regard to the dying declaration also. In
    such circumstances, the trial court as Well as the High
G   Court recorded possible as well as plausible conclusions.
    The judgments recorded by the courts below do not call
    for any interference. (Paras 20- 23] (570-D-F-G; 572-E-H;
    573-A-B]
       Lax man v. State of Maharashtra (2002) 6 SCC 710 -
H relied on.
          OM PAL SINGH v. STATE OF U.P.                     561


     Kanti Lal v. State of Rajasthan (2009) 12 SCC 498 -            A
referred to.
                     Case Law Reference:
    (2002) s sec 11 o          relied on              Para 11
                                                                    B
    (2009) 12 sec 498          referred to            Para 11

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 973 of 2003.

    From the Judgment & Order dated 26.08.2002 of the High          C
Court of Judicature at Allahabad in Criminal Appeal No. 604
of 1980.

    Nagendra Rai, Anurag Dubey, D.P. Pandey, Meenesh
Dubey, S.R. Setia for Appellant.
                                                                    D
    S.R. Singh, Anuvrat Sharma, Alka Sinha, Ashutosh Kr.
Sharma for the Respondent.

    The Judgment of the Court was delivered by
                                                                    E
     SURINDER SINGH NIJJAR, J. 1. This appeal has been
filed against the judgment and order of the High Court of
Judicature at Allahabad in Criminal Appeal No. 604 of 1980
by which the High Court has confirmed the judgment of the trial
court wherein the appellant had been convicted under Section
302 IPC and sentenced to life imprisonment.                         F

      2. The prosecution version as noticed by the trial court as
well as the High Court is that there was enmity between the
deceased Rishipal and Om Pal Singh, the appellant herein for
a number of years. Both the deceased and the appellant were         G
competing for the license of a liquor shop near the railway
station, Davera, about 3 years prior to the tragic incident on
11.6.1978. Since then, there had been several hostile incidents,
at different times, between the two.' It appears that on one
occasion, the appellant had beaten up Rishipal, on the basis        H
    562   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R


A of which a criminal case was pending against the appellant in
  the local Court at Bareilly. Thereafter, there was a theft
  committed at the grocery shop of the deceased. Here again,
  he had registered a complaint of theft against the appellant at
  the local police station. As a consequence of these incidents,
B earlier also in the month of February or March, 1978, the
  appellant had tried to kill the deceased but he had managed
  to escape. But the victim was not so lucky, when he was shot
  down by the appellant on 11.6.1978.

C      3. According to Ram Prakash (hereinafter referred to as
  PW 2) on 11.6.1978, he had gone to FCI godown in Village
  Ehroli to purchase food grains. Later, he, Rishipal, Ravinder Pal
  Singh (hereinafter referred to as PW 3) and Rambir Singh were
  returning form the godown on their cycles. When they were at
  a distance of about 200 steps form the culvert of the State tube
D well, the appellant also arrived there on his Yezdi motorcycle
  from the village. He was armed with a double-barrelled gun.
  Rishipal was about 15 to 20 paces ahead of the rest. On
  seeing him, the appellant parked his motorcycle at a distance
  of about 40 steps. He then advanced towards Rishipal. Seeing
E him the deceased became perplexed; he left his cycle and
  rushed towards the plot of one Birpal Singh. He was wearing
  an 'open shirt' (Ext. 1), 'Baniyan' (Ext. 2) and 'Pant' (Ext. 3).
  Thereafter the appellant fired one shot from his double-barrelled
  gun at Rishipal causing injuries to him. The deceased fell down
F as a result of the injuries. The appellant thereafter escaped,
  leaving behind his motorcycle.

       4. PW 2 and others then took the deceased in a bullock
  cart to Davtra. Thereafter they proceeded to Police Station
G Bisauli at 6:10 p.m. on the same day and lodged the written
  report (Ext. Ka 2). On the basis of the written report (Ext. Ka
  2), H.C lrshad Khan(PW 4) wrote FIR (Ext. Ka 4) and registered
  the case in GD. (Ext. Ka 5) under Section 307 IPC. He took
  the clothes of the injured Rishipal for which he wrote memo (Ext.

H
          OM PAL SINGH v. STATE OF U.P.                     563
           [SURINDER SINGH NIJJAR, J.]
Ka 3) and sent him to hospital Bisauli for medical examination.    A
But unfortunately, no doctor was present there. Dr. Chandan
Singh Verma (PW-1) medical officer at Bisauli was on leave
on that day. Shri Bipaon Behari Khare (PW-6), the then
Tehsildar Magistrate, Bisauli recorded his dying declaration
(Ext.Ka9) at hospital Bisauli. He sealed this dying declaration    B
and sent the same to CJM Budaun. The case was registered
in the presence of S.I. Hawaldar Singh (PW-7). He started the
investigation and recorded the statement of H.C. lrshad Ahmed
and proceeded to the Hospital Bisauli. He recorded the
statement of Rishipal (Ext. Ka11) there. Then he recorded the      c
statements of Ram Prakash, Rambir and Ravinder Singh at the
Hospital. He also recorded the statement of Shreepal there.
Rishipal was then sent to the District Hospital, Budaun for
medical examination after his dying declaration was recorded.
S.I. Hawaldar Singh reached the spot along with complainant        D
Ram Prakash. He inspected the site and prepared site plan
(Ext. Ka12). He found Yezdi motor cycle at the spot. There was
a basket in his motor cycle containing bags and other goods
(Exts 4 & 5). He took these articles in his possession for which
he wrote memo (Ext.-Ka13). He also collected blood stained
earth (Ext.6), unstained earth (Ext.7) and two wads (Ext.7&9)      E
from the spot for which he wrote memo (Ext.Ka14). He gave
raid at the house of the accused but in vain. Then he recorded
the statements of Rajpal Singh, Mahipal Singh, Raghubir Singh
and others.
                                                                   F
      5. Dr. V.P. Kulshrestha (PW-5) medically examined
Rishipal Singh on 11.6.1978 at 8.30 p.m. and found gun shot
injuries on his person and opined that the injuries could be
caused to Rishipal Singh on 11.6.1978 at about 3 or 3.30 p.m.
                                                                   G
    6. Rishipal Singh died on 11.6.1978 at 9.40 p.m. at District
Hospital, Budaun the report of which was sent to Police Station
Kotwali, Budaun. This report was received at the Police Station
Kotwali at 10.30 p.m. On receipt of this information S I B.D.
Sharma (PW-9) proceeded to the mortuary Budaun and held
                                                                   H
    564   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A   inquest on the dead body of Rishipal Singh and prepared
    papers (Exts-Ka 17 to Ka-22). He sealed the dead body and
    sent the same through constables Harbir Singh and Rajbir
    Singh on 12.6.1978 at 9.30 a.m. for post mortem examination.

8      7. Dr. E.A.K. Tiwari (PW-10) who conducted autopsy on
  the dead body of Rishipal on 12.6.1978 at 4 p.m. opined that
  Rishipal died due to gun shot injuries on 11.6.1978 at 9: 40
  p.m. The information regarding the death of Rishipal was
  received on 12 .6.1978 through constable Harishankar at 6:30
C a.m. and the case was altered to 302 IPC vide G.D (Ext. Ka6).
  On the receipt of the post mortem report S.I. Hawaldar Singh
  recorded the statement of the witnesses- of inquest report.
  Thereafter Inspector Chander Mohan Dixit made the remaining
  investigation in the case. He submitted charge sheet (Ext. Ka
  15) against the appellant on 18.7.1978. The chemical examiner
D gave report (Ext Ka 24) that the pant, open shirt, baniyan and
  earth (Exts 1 to 4) were stained with blood. The appellant
  pleaded not guilty and was duly put on trial.

       8. By order dated 21.3.1980, the Trial Court convicted the
E appellant under Section 302 IPC, and sentenced him to
  rigorous imprisonment for life.

      9. Challenging the aforesaid judgment, the appellant filed
  Criminal Appeal No: 604 of 1980 before the High Court of
  Judicature at Allahabad. The High Court vide order dated
F 26.8.2002 confirmed the conviction and sentence of the
  appellant under Section 302 IPC. Aggrieved by the said
  judgment, the appellant filed Criminal Appeal No: 973 of 2003
  before this Court.

G     10. We have heard Mr. Nagendra Rai, learned Senior
  Advocate for the appellant and Mr. S.R.Singh on behalf of the
  respondent State. Mr. Nagender Rai, learned senior counsel
  submitted that both the trial court as well as the High Court have
  committed a serious error in convicting the appellant for the
H murder. Learned counsel submitted that the entire genesis of
            OM PAL SINGH v. STATE OF U.P.                      565
             [SURINDER SINGH NIJJAR, J.]

the incident has been fabricated. Both the eye-witnesses PW-           A
2 and PW-3 have stated that the appellant had fired only once
from his licensed double-barrelled gun. Yet the medical
ev!dence clearly shows that the deceased suffered multiple gun
shot injuries, which are not consistent with the ocular version
given by the prosecution witnesses. Learned senior counsel             B
also submitted that if one examines the injuries carefully, it
would be found that the deceased had suffered injuries on the
chest as well as the back. This would not have been possible
as the appellant is alleged to have fired only once. It is further
submitted that the motive narrated by PW-2 and PW-3 is                 c
entirely a made up story. Neither PW-2 nor PW-3 were eye-
witnesses to any of the alleged incidents. They have merely
given the evidence on the basis of hearsay. Learned senior
 counsel further submitted that there was recovery of two empty
 cartridges from the spot which has not been explained by the          D
 prosecution. This would clearly belie the version that has been
 given by the prosecution. The evidence of PW-2 and PW-3
 even otherwise ought not to have been believed as they are
 not consistent on any of the relevant points. Learned senior
 counsel submitted that the Courts below have erred in law in
                                                                       E
 relying on the alleged dying declaration recorded by Tehsildar/
 Magistrate, Bisauli. The dying declaration could not have been
 made by the deceased as he would not have been in ~ fit
 condition, in view of the seriousness of the injuries suffered. In
 any event, the dying declaration has been recorded without
 obtaining any certificate from a doctor that the deceased was         F
 in a fit state to make a statement. The statement has been
 recorded only because the pharmacist posted at the hospital
 at the relevant time had stated that the injured was in a fit state
 to give a statement.
                                                                       G
    11. In support of the submission, the learned counsel relied
on two judgments of this Court viz., Laxman Vs. State of
Maharashtra 1 and Kanti Lal Vs. State of Rajasthan 2 . Summing
1.   (2002) 6 sec 710.
2.   (2009) 12 sec 498.                                                H
     566   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


 A   up his submissions, the learned counsel submitted that there
     is hardly any evidence either ocular or medical to connect the
     appellant with the murder. There is no clear evidence of any
     previous enmity between the appellant and the deceased.

 B       12. Learned counsel for the State of U.P. submitted that
    there is clear evidence of rivalry between the appellant and the
    deceased. He also submitted that in view of the eye-witness
    evidence of PW-2 and PW-3, motive even though proved in this
    case, was not necessary to be proved. Learned counsel further
    submitted that PW-2 and PW-3 belong to the same village,
  C therefore, there was no reason for them to falsely implicate the
    appellant. The dying declaration, according to the learned
    counsel, is clear, cogent and has been rightly relied upon by
    the trial court as well as the High Court. It has been duly
.   recorded by the Magistrate after observing all necessary legal
  0 formalities.

        13. We have considered the submissions made by the
   learned counsel. The trial court as well as the High Court, upon
   consideration of the entire ocular evidence have concluded that
 E both PW-2 and PW-3 have given a consistent version of the
   various incidents narrated above, which precipitated the enmity
   between the deceased and the appellant. The animosity of the
   appellant towards the deceased was such that only a couple
   of months before the present incident, he and his friends had
 F encircled Rishipal with the intention of killing him. On that
   occasion, however, the deceased had managed to escape. The
   next time he was not so lucky.

        14. The deceased was undoubtedly expecting to be
   attacked by the appellant, which is evident from the fact that
 G he started moving away from the path of the appellant as soon
   as he saw him. He was running towards the field of Birpal when
   the appellant opened fire from his double-barrelled gun. The
   aforesaid incident was witnessed by PW2 and PW3, who were
   only 15 to 20 paces behind the deceased at the time when he
 H was shot down. They have clearly stated that they did not chase
              OM PAL SINGH v. STATE OF U.P.                   567
               [SURINDER SINGH NIJJAR, J.]
the appellant fearing for their own life.                            A
      15. Both the Courts have also noticed that the FIR was
initially registered under Section 307 IPC on the basis of the
statement given by PW-2. In the aforesaid statement PW2 had
clearly stated that on 11.6.1978 at about 3.30 p.m. when he
was returning from the FCI godown alongwith the deceased
                                                                     B
Ravinder Pal Singh and Rambir Singh, they had seen the
appellant coming from the opposite direction on his motorcycle.
He had stopped his motorcycle upon seeing them. He fired at
the deceased from his double-barrelled gun and then fled from
the scene. He did not even care to take his motorcycle with him,     C
which was subsequently recovered from the scene of the crime.
 He clearly stated that they were so petrified that they did not
chase him. In the FIR, this witness further narrates the history
of the animosity between the deceased and the appellant.
Therefore, both the trial court as well as the High Court, in our    D
opinion, have correctly concluded that the motive was not
 introduced only at the time of the trial, in Court.

     16. Both the courts have noticed that Dr. V.P. Kulshrestha
(PW-5) medically examined Rishipal Singh on 11.6.1978 at             E
8.30 p.m. and found the following gun shot injuries on his person
as per injury report:-

      (i)      Gun shot wound of entry 0."2cm x muscle deep in
               right shoulder front (total two in number, no
               blackening and tattooing), injury kept under          F
               observation.

      (ii)     Multiple gun shot wounds of entries in an area of
               22cm x 17 cm on front of chest both sides (total
               number 15) No blackening and tattooing. Injury kept   G
               under observation.

      (iii)    Multiple gun shot wounds of entry in an area of
               22cm x 21 cm on front of abdoment (total number
               9) Injury kept under observation.
                                                                     H
     568    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A          (iv)    Multiple gun shot wounds of entry in an area of 13x5
                   cm right upper arm front and lateral aspect (total
                   number 6) extending upto elbow. Injury kept under
                   observation.

           (v}     4 gun shot wounds of entry on dorsum of right hand
B                  Injury kept under observation.

           (vi)    Seven gun shot wounds of entry on front of right
                   thigh upper 1/3rd, Injury kept under observatiop.

           (vii)   Gun shot wounds of entry in an area of 5x22cm on
c                  right upper arm front to medical aspect of left upper
                   arm.

       17. Dr. V.P. Kulshrestha had opined that the injuries could
  be caused to Rishipal Singh on 11.6. 1978 at about 3 or 3.30
D p.m.

      18. Both the Courts have also noticed that Dr. E.A.K.
  Tiwari, PW-10 conducted the autopsy on the dead body of
  Rishipal on 12.6.1978 at 4.00 p.m. According to the post-
E mortem report, the following injuries were found on the dead
  body:-

           1.      Multiple gun shot wounds of entry (fifteen) each
                   measuring 0.25cm x 0.25cm roughly circular on
                   both sides of chest (5 on the left and 10 on the right
F                  side).

           2.      Multiple gun shot wounds of entry (nine) in number
                   measuring 0.25cm x 0.25cm roughly circular on the
                   front of the abdomen.
G
           3.      Multiple gun shot wounds of entry (3) in number
                   measuring 0.25cm x 0.25cm roughly circular on the
                   front of the right shoulder.

           4.      Multiple gun shot wounds of entry (6) in number
H~
           OM PAL SINGH v. STATE OF U.P.                     569
            [SURINDER SINGH NIJJAR, J.]
            each measuring 0.25cm x 0.25cm roughly circular          A
            on the front and the side of the right upper arm.

     5.     Two gun shot wounds of entry 0.25cm x 0.25cm
            roughly circular on the palm of the right hand (one
            near the base of thumb).                                 8
     6.     Multiple gun shot wounds of entry (7) in number
            each measuring 0.25cm x 0.25cm roughly circular
            on the front of the upper part of right thigh.

      7.    Multiple gun shot wounds of entry (3) three in           c
            number on the front and side of the left thigh upper
            part each measuring 0.25cm x 0.25cm roughly
            circular.

      8.    One gun shot wound of entry 0.25cm x 0.25cm
            roughly circular on the medical side of the middle
                                                                     D
            of the upper arm.

      9.    One gun shot wound of entry 0.25cm x 0.25cm
            roughly circular on the outer side of the left side of
            neck.                                                    E

     This witness clearly opined that Rishipal died of gun shot
     injury.

     19. The trial court as well as the High Court have also
considered the submissions as to whether injury no. 9 was            F
inconsistent with the ocular version that only one shot was fired
by the appellant. It was also sought to be submitted before us
that injury no. 9 is definitely from a different weapon. This
according to Mr. Nagendra Rai would clearly show that the
genesis of the crime has been suppressed by the prosecution.         G
The trial court as well as the High Court, upon consideration of
the same submission have concluded that both the doctors
examined i.e. PW-5 and PW-10 were not ballistic experts. They
were not able to state as to whether the injuries were caused
by a single shot from a double-barrelled gun. Relying on "Modi's     H
    570    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A Medical Jurisprudence and Toxicology" (19th Ed. Pg. 221), the
  trial court has concluded that when a projectile strikes the body
  at a right angle, it is circular and oval when it strikes the body
  obliquely. Dr. V.P. Kulshrestha, PW-5, in his injury report has
  stated that injury no. (i) is 2 cm x 2 cm muscle deep and is on
B right shoulder. According to him, if this pellet had moved slightly
  to the inner side, it would have caused injury on the right side
  of the neck like injury No. 9 on the left side. This apart, it is not
  disputed that all the other injuries on the deceased could have
  been caused by a single shot from a double-barrelled gun. Both
c the trial court as well as the High Court has held that the medical
  evidence is consistent with the ocular evidence. We did not see
  any reason to interfere with the findings recorded by both the
  Courts.

        20. This now brings us to the submissions with regard to
D the dying declaration. Factually, it is to be noticed that the
  Tehsildar, who recorded the dying declaration appeared as
  PW-6, he has clearly stated that although no doctor was present
  in the hospital, he was informed by the pharmacist that Rishipal
  Singh was in a fit state to make a statement. He, thereafter,
E isolated the injured Rishipal Singh and recorded his statement.
  He further stated that he wrote down word by word what
  Rishipal Singh had stated. The contents of the statement were
  read to the injured who stated that he understood and accepted
  the same. Only thereafter, he put his thumb impression on the
F statement. It is undoubtedly true that the statement has not been
  recorded in the question and answer form. It is also correct that
  at the time when the statement was recorded Rishipal Singh
  was in a "serious condition".

G       21. This Court in Laxman case (supra) has enumerated
    the circumstances in which the dying declaration can be
    accepted. We may notice here the observations made in the
    Paragraph 3, which are as under:-

          The juristic theory regarding acceptability of a dying
H         declaration is that such declaration is made in extremity,
      OM PAL SINGH v. STATE OF U.P.                       571
       [SURINDER SINGH NIJJAR, J.]
when the party is at the point of death and when every hope       A
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         B
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                    c
dispensed with. Since the accused has no power of cross-
examination, the courts 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 always to be on guard to see that the
                                                                  0
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               E
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     F
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.    G
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               H
    572     SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A         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 I.aw that a dying declaration must
          necessarily be made to a Magistrate and when such
          statement is recorded by a Magistrate there is no
B         specified statutory form for such recording. Consequently,
          wh.at 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
c         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
D
          essentially a rule of caution and therefore the voluntary and
          truthful nature of the declaration can be established
          otherwise.

       22. In our opinion, the trial court as well as the High Court
E correctly accepted that the dying declaration was an acceptable
  piece of evidence. Merely because, it is not in question and
  answer form would not render the dying declaration unreliable.
  The absence of a certificate of fitness by the Doctor would not
  be sufficient to discard the dying declaration. The certification
F by the doctor is a rule of caution, which has been duly observed
  by the Tehsildar/Magistrate, Bisauli, who recorded the
  statement. The statement made by the injured is candid,
  coherent and consistent. We see no reason to disbelieve the
  same. We, therefore, see no reason to differ with the
G conclusions arrived at by the trial court and the High Court with
  regard to the dying declaration also. We must also notice that
  PW2 and PW3 have given clear and consistent eye-witness
  account. They have narrated the previous incident of
  disharmony between the appellant and the deceased. They
H have also adverted to the previous attempts by the appellant
           OM PAL SINGH v. STATE OF U.P.                       573
            [SURINDER SINGH NIJJAR, J.]
to harm the deceased. The entire incident of shooting has been        A
graphically described by the two witnesses. The direct
testimony of these two witnesses have been corroborated by
the medical evidence and the dying declaration.

     23. In such circumstances, the trial court as well as the High   B
Court have recorded possible as well as plausible conclusions.
In our opinion, the judgments recorded by the Courts below do
not call for any interference. The appeal is dismissed.
                   I


D.G.                                          Appeal dismissed.