Paragraph numbers below are the court’s original numbering, recovered from the source text.
21. The objections raised by the counsel appearing for the appellant which are of technical nature with regard to recording and admissibility of the aforesaid dying declaration. We are c however, of the considered opinion that the said dying decla;ation recorded by the doctor is also corroborated by the oral dying declaration made before PW-1 and PW-3 and the said fact also finds corroboration from the statement of PW-1 and PW-3 and also from the FIR which were proved through D the evidence of PW-1.
22. Section 32 of the Indian Evidence Act, 1872 deals with the statement of persons who cannot be called as witnesses as because they are dead or they cannot be found or they have E become incapable of giving evidence or their evidence cannot be procured without an amount of delay or expense. Such statements themselves are relevant facts in certain cases. The aforesaid Section 32 was enacted as an exception to the general rule as reflected in Section 60 of the said Act which F mandates that oral evidence in all cases must be direct i.e. if it refers to a fact which could be seen, it should be the evidence of a witness who says he saw it, whereas if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it or if it refers to a fact which could be perceived G by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense br in that manner.
23. The question as to admissibility of such a dying Y–.. – declaration came up for consideration before this Court in H several cases. We have considered the Constitution Bench SUKANTI MOHARANA v. STATE OF ORI SSA [DR. MUKUNDAKAM SHARMA, J.] decision of this Court in Laxman v. State of Maharashtra reported in (2002) 6 sec 710. In the said case also there was a dying declaration and a question regarding the admissibility of the said dying declaration was raised. In that connection this Court held that the Court must decide that the declarant was in -… ..,,- a fit state of mind to make the declaration, but where the eye · B witnesses' evidence including the evidence of a Magistrate who had recorded the dying declaration to that effect was available, mere absence of doctor's certification as to the fitness of the A. declarant's state of mind, held, would not ipso facto render the dying declaration unacceptable. It was also held that the c evidentiary value of such a declaration would depend upon the facts and circumstances of the particular•case.
24. In paragraph 3 of the said judgment, this Court discussed the juristic theory recording acceptability of a dying declaration in the following manner:- "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 deathed is so solemn and serene, is the reason in law to accept the veracity 9f his statement.. … "
25. The Constitution Bench in that case also referred to an earlier decision of this Court in Kofi Chuni/a/ Savji v. State of Gujarat (1998) 9 SCC 303, wherein it was held that the ~-.ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given and in the said decision it was also held that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to A make the statement in question. The aforesaid ratio of the said Ac decision was affirmed in the Laxman case(supra).
26. There is another very recent decision of this Court in Vikas and Others v. State of Maharashtra reported in (2008) B 2 sec 516 wherein all the earlier relevant decisions on the point have been indexed and referred to and relied upon. The said decision specifically reiterates the principle governing the dying declaration which was stated in the case of Paniben v. State of Gujarat reported in (1992) 2 SCC 474. In paragraph " 45 of the said judgment, it was stated thus:- c "45. The Court, referring to earlier case law, summed up principles governing dying declaration as under: (Paniben case4, sec pp. 480-81, para 18) "18. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ~ -· (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be reje~ted. .. – ' (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. SUKANTI MOHARANA v. STATE OF ORISSA [DR. MUKUNDAKAM SHARMA, J.] -,..l (vii) Merely because a dying declaration does not A contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of B the statement itself guarantees truth. .i (ix) Normally 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 eyewitness has said that the deceased was in a fit and c conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said D declaration cannot be acted upon."
27. After referring to the decision of this Court in Khusha/ Rao v. State of Gujarat reported in AIR 1958 SC 22, the principle formulated earlier was reiterated that where a.dying declaration is recorded by a competent Magistrate, it would stand on a much. higher footing inasmuch as a competent Magistrate has no axe to grind against the person named in ;. the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the court.
28. The aforesaid principles which are laid down are fully applicable to the facts of the present case as in this case the dying declaration was recorded by a doctor who was. most disinterested witness. It was also categorically stated by the G doctor that at the time when she made her dying declaration, ~-" she was in a fit state of mind.
29. In the case of Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. reported in AIR 2008 SC 19, in paragraph 18 it was stated thus; c "18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. This Court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion."
30. In the said decision this Court also referred to a D decision of the aforesaid Constitution Bench and reiterated that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when the dying declaration was recorded by a Magistrate. It was also held in the said E decision that it is the testimony of the Magistrate that the declarant was fit to make statement gains importance and that reliance can be placed upon such a declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful.
31. When we apply the aforesaid principles to the facts of the present case we are of the considered opinion that both the courts were totally justified and also right in relying upon the two dying declarations one recorded by the doctor (PW-10) and G the other i.e. oral dying declaration made to PW-1 and PW-3. The two technical objections which were raised by the counsel for the appellant, one regarding the doctor's certification and endorsement as to mental fitness of the deceased, the same was held by this Court to be a rule of prudence and not the ultimate test as to whether or not the said dying declaration was SUKANTI MOHARANA v. STATE OF ORISSA [DR. MUKUNDAKAM SHARMA, J.] truthful or voluntary.
32. The doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. c
33. There was another objection raised by the counsel appearing for the appellant regarding the admissibility of the aforesaid recorded dying declaration contending inter alia that the signature or the thumb impression of the deceased was not taken on the said dying declaration. The said objection according to us also is without any basis. The deceased had suffered about 90 to 95 per cent burn injuries covering 90 to 95 per cent body surface. The post mortem report also indicates that there was bandage in her thumb as it was burn!. In such a situation, it was not possible to take her signature or LT! on the dying declaration. There is also no reason why a dying declaration which is otherwise found to be true, voluntary ·and correct should be rejected only because the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the dying declaration. Once it is found that the dying declaration is true and made voluntarily and as also trustworthy, there is no reason why the same should not be believed and relied upon. In this case, the said dying declaration is corroborated by the oral dying declaration made by the deceased before PW-1 and PW-3 which is also corroborated by the medical evidence and …–'°' the facts contained in the FIR.
34. Therefore, taking an overall view of all the facts and circumstances of the case and the evidence on record, we find A no ground to interfere with the order of conviction and sentence recorded by the trial court and confirmed by the High Court holding the appellant guilty of the offence under Section 302 IPO. The present appeal therefore deserves to be dismissed which we hereby do. The order of conviction and sentence B recorded against the appellant is therefore upheld. B.B.B. Appeal dismissed.