State of Madhya Pradesh vs. Dal Singh & Ors, Criminal Appeal No. 2303 of 2009, Decided on
May 21, 2013
The Hon’ble
Supreme Court held that:
“….The person who records a
dying declaration must be satisfied that the maker is in a fit state of mind
and is capable of making such a statement. Moreover, the requirement of a
certificate provided by a Doctor in respect of such state of the deceased, is
not essential in every case. Undoubtedly, the subject of the evidentiary value
and acceptability of a dying declaration, must be approached with caution for
the reason that the maker of such a statement cannot be subjected to
cross-examination. However, the court may not look for corroboration of a dying
declaration, unless the declaration suffers from any infirmity.
So far as the question of
thumb impression is concerned, the same depends upon facts, as regards whether
the skin of the thumb that was placed upon the dying declaration was also
burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may
remain intact. Therefore, it is a question of fact regarding whether the skin
of the thumb had in fact been completely burnt, and if not, whether the ridges
and curves had remained intact”. [Para 14]
The Court also
observed:
“Burn injuries are normally
classified into three degrees. The first is characterised by the reddening and
blistering of the skin alone; the second is characterised by the charring and
destruction of the full thickness of the skin; and the third is characterized
by the charring of tissues beneath skin, e.g. of the fat, muscles and bone. If
a burn is of a distinctive shape, a corresponding hot object may be identified
as having been applied to the skin, and thus the abrasions will have distinctive
patterns”. [Para 20]
“There may also be in a given
case, a situation where a part of the body may bear upon it severe burns, but a
small part of the body may have none. When burns occur on the scalp, they may
cause greater difficulties. They can usually be distinguished from wounds inflicted
before the body was burnt by their appearance, their position in areas highly
susceptible to burning, and on fleshy areas by the findings recorded after
internal examination. Shock suffered due to extensive burns is the usual cause
of death, and delayed death may be a result of inflammation of the respiratory
tract, caused by the inhalation of smoke. Severe damage to the extent of
blistering of the tongue and the upper respiratory tract, can follow due to the
inhalation of smoke”. [Para 21]
On the facts and
circumstances of the case, the Court held:
“..the defence did not put any
question either to the executive magistrate, or to the I.O., or to the doctors
who had examined her or conducted the post-mortem, with respect to whether any
part of the thumb had skin on it or not, as in both the dying declarations,
ridges and curves had been clearly found to exist, we do not see any reason to
dis-believe the version of events provided by the executive magistrate and the
I.O., who had recorded the dying declarations. No suggestion was made to either
of them in this regard, nor was any explanation furnished with respect to why
these two independent persons who had recorded the dying declarations, would have
deposed against the respondents accused. In the event that both of them had
found the deceased to be in a fit physical and mental condition to make a
statement, there exists no reason to disbelieve the same. In light of such a
fact-situation, the concept of placing of a thumb impression, loses its
significance altogether.” [Para 26]
“We cannot accept the submissions
made on behalf of the respondents stating that Kusumbai had been tutored by her
parents, as the evidence on record clearly reveals that the tractor had been brought
at the instance of the respondents, and that they had been present in the
trolley with her parents and other relatives throughout. Therefore, her parents
and other relatives could have had no opportunity to implicate the respondents,
or to tutor her.” [Para 27]
The Court also
noted following case laws:
Mafabhai
Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186, the Court dealt with a
case wherein a question arose with respect to whether a person suffering from
99 per cent burn injuries could be deemed capable enough for the purpose of
making a dying declaration. The learned trial Judge thought that the same was
not at all possible, as the victim had gone into shock after receiving such high
degree burns. He had consequently opined, that the moment the deceased had seen
the flame, she was likely to have sustained mental shock. Development of such
shock from the very beginning, was the ground on which the Trial Court had
disbelieved the medical evidence available. This Court then held, that the
doctor who had conducted her post-mortem was a competent person, and had
deposed in this respect. Therefore, unless there existed some inherent and
apparent defect, the court could not have substitute its opinion for that of
the doctor’s. Hence, in light of the facts of the case, the dying declarations
made, were found by this Court to be worthy of reliance, as the same had been
made truthfully and voluntarily. There was no evidence on record to suggest
that the victim had provided a tutored version, and the argument of the defence
stating that the condition of the deceased was so serious that she could not
have made such a statement was not accepted, and the dying declarations were
relied upon.
Laxman v. State
of Maharashtra, AIR 2002 SC 2973, the Court held, that a dying declaration can
either be oral or in writing, and that any adequate method of communication,
whether the use of words, signs or otherwise will suffice, provided that the
indication is positive and definite. There is no requirement of law stating
that a dying declaration must necessarily be made before a Magistrate, and when
such statement is recorded by a Magistrate, there is no specified statutory
form for such recording. Consequently, the evidentiary value or weight that has
to be attached to such a statement, necessarily depends on the facts and
circumstances of each individual 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, and where the same is proved by the testimony of
the Magistrate, to the extent that the declarant was in fact fit to make the statements,
then even without examination by the doctor, the said declaration can be relied
and acted upon, provided that the court ultimately holds the same to be
voluntary and definite. Certification by a doctor is essentially a rule of
caution, and therefore, the voluntary and truthful nature of the declaration
can also be established otherwise.
Koli Chunilal
Savji v. State of Gujarat, AIR 1999 SC 3695, the Court held, that the ultimate
test is whether a dying declaration can be held to be truthfully and
voluntarily given, and if before recording such dying declaration, the officer
concerned has ensured that the declarant was in fact, in a fit condition to
make the statement in question, then if both these aforementioned conditions are
satisfactorily met, the declaration should be relied upon.
Laxmi v. Om
Prakash & Ors., AIR 2001 SC 2383, the court held, that if the court finds
that the capacity of the maker of the statement to narrate the facts was
impaired, or if the court entertains grave doubts regarding whether the
deceased was in a fit physical and mental state to make such a statement, then
the court may, in the absence of corroborating evidence lending assurance to
the contents of the declaration, refuse to act upon it.
Govindappa &
Ors. v. State of Karnataka, (2010) 6 SCC 533, it was argued that the Executive
Magistrate, while recording the dying declaration did not get any certificate
from the medical officer regarding the condition of the deceased. The Court
then held, that such a circumstance itself is not sufficient to discard the
dying declaration. Certification by a doctor regarding the fit state of mind of
the deceased, for the purpose of giving a dying declaration, is essentially a
rule of caution and therefore, the voluntary and truthful nature of such a
declaration, may also be established otherwise. Such a dying declaration must
be recorded on the basis that normally,
a person on the verge of death would not implicate somebody falsely. Thus,
a dying declaration must be given due weight in evidence.
State of Punjab
v. Gian Kaur & Anr., AIR 1998 SC 2809, an issue arose regarding the
acceptability in evidence, of the thumb impression of Rita, the deceased, that
appeared on the dying declaration, as the trial court had found that there were
clear ridges and curves, and the doctor was unable to explain how such ridges and
curves could in fact be present, when the skin of the thumb had been completely
burnt. The court gave the situation the benefit of doubt
Rambai v. State
of Chhatisgarh, (2002) 8 SCC 83
Babu Ram &
Ors. v. State of Punjab, AIR 1998 SC 2808
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