Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P.  Insc 979 (26 September 2007)
Raveendran & B.Sudershan Reddy
APPEAL NO. 1315 OF 2005 B. Sudershan Reddy, J.
This appeal arises out of judgment dated 30th March, 2005 of the High Court of Andhra Pradesh
at Hyderabad in Criminal Appeal No. 193/2003.
The appellant and two others were tried for having committed the murder of Dasari
Srinivasa Rao alias Bujji by hacking him with knives. The appellant and the two
others were also tried for various offences including the one punishable under
the provisions of Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Accused No.2 was acquitted of all the charges by the
learned Sessions Judge, Guntur. The learned Sessions Judge however
convicted the appellant and another (A.3) for the offence punishable under
Section 302 IPC and were sentenced to imprisonment for life. They were also
fined Rs.5,000/- in default, each has to suffer rigorous imprisonment for two
months. Both of them were acquitted of the charges framed under the provisions
of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,
1989. The appellant and accused No.3 preferred Criminal Appeal Nos.193/03 and
161/03 respectively. The High Court upon appreciation of the evidence on record
confirmed the conviction of the appellant under Section 302 IPC and accordingly
confirmed the sentence of the life imprisonment. The Criminal Appeal No. 161/03
preferred by A.3 was allowed setting aside the conviction and sentence imposed
upon him. The sole appellant who is A.1 has preferred this Criminal Appeal by
Special leave, challenging his conviction and sentence under Section 302 IPC.
case of the prosecution in nut shell is that the deceased Dasari Srinivasa Rao
alias Bujji was an accused in a case relating to the murder of brother of the
appellant. On 05.01.1998 at about 4.30 or 5.00 p.m, the three accused including the appellant herein chased the deceased
and attacked him with knives while he was returning from Vishnupriya Cinema
theatre, Gorantala, Guntur, after seeing a movie causing
multiple injuries leading to his death. The Sub-Inspector of Police (P.W. 9)
reached the scene of offence by 5.30 p.m. and found the injured (deceased) on the road. He shifted him to Guntur General Hospital. At about 6.00 p.m.,
P.W.9 recorded a Dying Declaration (Ex.P- 10) in which the deceased implicated
the appellant and four others. That another dying declaration was recorded by
the 6th Additional Magistrate, Guntur (P.W.7) which commenced at 6.35 p.m. on 05.01.1998. The victim succumbed to the injuries
and died at about 9.30
p.m. on the same day
in the hospital. P.W.10 Professor and Doctor of Forensic Medicine conducted
the post-mortem on examination on 06.01.1998. Ex.P-18 is the post-mortem Report
issued by him. He found as many as 63 injuries on the body of the deceased. He
expressed his opinion that the cause of death was due to multiple injuries.
P.W.11 continued the investigation and filed charge-sheet against the appellant
and two others.
prosecution examined 11 witnesses. P.W.1 to 4 were alleged to be the direct
eye-witness (the Supervisor of the cinema theatre, owners of a Hotel and tea
stall on the road side near the cinema theatre and person who accompanied the
deceased to the movie). All of them turned hostile and did not support the
the mother of the deceased speaks only about the motive. Therefore, the entire
prosecution case rests upon the dying declarations in Ex.P-8 and Ex.P-10
recorded respectively by P.W.7 and P.W.9. The Sessions Court as well as the
High Court relying upon the dying declarations convicted the appellant. The
High Court found that before the dying declarations were recorded
"opinions of the doctors attending on the deceased were also obtained in
Ex.P-7 and Ex.P-11, which clearly show that the deceased was fit enough to make
the statement when these dying declarations were recorded. Strange are the ways
in which human bodies react to different situations. Though superficially it
appears that with 63 injuries on the body of a person he would not be in a
position to make a statement but it appears that he was fit enough to make a
High Court came to the conclusion that the dying declarations contained
truthful statement of a dying man.
High Court accordingly confirmed the conviction passed by the trial court as
against the appellant.
convenient now to return to the critical submissions made at the bar.
Nitya Ramakrishna, learned counsel appearing for the appellant argued with
vehemence that the two dying declarations cannot be relied upon inasmuch as Dr.
T. Narasimha Rao, the Casualty Medical officer, Government General Hospital, Guntur who examined and allegedly
certified about the fitness of the deceased to give statement, was not examined
as a witness. There is no evidence on record indicating the physical and mental
condition of the deceased to the effect that he was in a fit condition to make
the statement. The learned counsel also highlighted the inconsistencies between
the two dying declarations namely one recorded by the Police Officer (P.W.9)
and another by the learned Judicial First Class Magistrate (P.W.7). The learned
counsel also further urged that the evidence of P.W. 10 Professor of Forensic
Medicine who conducted the post-mortem which is relevant and material has
altogether been ignored by the courts below.
D. Bharathi Reddy, learned counsel for the respondent on the other hand submitted
that the dying declarations which have been relied upon by the High Court in
the facts and circumstances have been rightly held to be a truthful and
voluntary and, therefore, in law, can form the sole basis for conviction. The
learned counsel strenuously contended that the dying declaration recorded by
the Magistrate cannot be held to be a doubtful one. Besides the learned counsel
submitted that the doctor did make an endorsement in both the dying
declarations certifying that the deceased was in a fit condition to make
statement and was present at the time of recording of the statement. Non
examination of the doctor is not fatal to the prosecution case was the
view of the rival submissions made during the course of the hearing of the
appeal, only one question really arises for our consideration, namely, whether
the two dying declarations can be held to be true and voluntary and can be
relied upon to convict the appellant? Whether the dying declarations suffer
from any serious infirmities requiring their exclusion from consideration?
order to consider the said question it is just and necessary to notice the
contents of both the dying declarations. Ex.P-10 Dying Declaration recorded by
Police Officer P.W.9 on 05.01.1998 at 6.00 p.m. at Casualty, Guntur
General Hospital is to the following effect:
day i.e. on 5.1.1998 Noon having went to the cinema in the
cinema hall situated at Gorantla;having witnessed the Cinema came out, there Sivayya
the younger brother of Ankamma, resident of Koritepadu and Rajka by caste and
four others came upon me and of them Nallapaati Sivayya cut my face and head
with hunting-sickle. The remaining 4 persons cut me with hunting sickles
(VETAKODAVLU) indiscriminately, on my legs and hands. I am an accused in the Ankamma's
it in mind, they cut me like this. The time was 4.30 5.00 hours. I cannot sign
as there are cut-injuries on my two hands. I can subscribe the right thumb
Narasimharao, C.M.O., Guntur
General Hospital, made an endorsement as "Pt.
Conscious coherent, fit mind to give statement."
Inspector of Police P.W.9 in his evidence stated that the deceased was
profusely bleeding and his condition was precarious even when the deceased was
shifted to Guntur
General Hospital. He did not verify from the
deceased as to whether he was in a fit condition to give his statement. He
noticed number of persons gathering around the victim at the scene of
occurrence. He did not verify the case sheet. He was not aware as to whether
any treatment has been administered to the victim. He commenced recording the
Dying Declaration (Ex.P-10) at 6.00 p.m. and
completed it by 6.25
Ex.P-8 is the dying declaration recorded by the learned VIth Additional
Magistrate, Guntur (P.W.7) in which the learned Magistrate certified that the declarant
was conscious, coherent and in a fit condition to give statement.
in his evidence that he did not verify from the doctor as to whether the victim
was in a fit condition to make the statement before commencing the recording of
dying declaration. He also did not verify the case sheet. Even on the second
Dying Declaration, Dr. T.Narasimharao made an endorsement to the effect that
"patient is conscious and coherent. Fit mind to give statement while
recording his statement. Statement recorded in my presence. Multiple cut
injuries on both hands and blood is oozing." The material part of the
dying declaration Ex.P-8 is to the following effect :
This day evening at 5.00 hours time I went to the Cinema Hall at Gorantla with
an intention to see cinema. By the time I went to the Vishnu Priya Cinema Hall,
Nallapati Sivayya and other three persons whom I do not know, all four in total
came and cut me indiscriminately with hunt sickles. A number of people are
there. But none came to my rescue. I fell down for those hits. Then some police
having reached brought me to the hospital. This is the matter occurred.
The learned Magistrate in his evidence stated that he received the requisition
from Casualty Medical Officer on 05.01.1998 at 6.25 p.m. to record the dying declaration of the victim. He
immediately rushed to the hospital and identified the victim through the Casualty
Medical officer Dr. T.Narasimharao. He did not verify the case sheet either
before or after recording the statement. He admitted that before recording the
Dying Declaration (Ex.P-8), he did not obtain any certificate or endorsement of
the doctor as to the fitness of the victim to give statement. The Magistrate
found multiple cut injuries on both hands, thumbs and right foot and in the
circumstances obtained the left great toe impression on Ex.P-8. It is
specifically stated by him that the blood was oozing from both the hands and it
was difficult to obtain either left or right thumb impression of the declarant.
objective and critical assessment of the material available on record discloses
that recording of dying declarations commenced immediately after the victim was
taken to the hospital right from 6.00 p.m. onwards and went on till 7.10 p.m. It means the victim was speaking coherently right from 6.00 p.m. to 7.10 p.m. on
not known as to what was the treatment administered to the victim immediately
after he was brought to the hospital. No explanation is forthcoming as to why
duty doctor at Casualty was not examined. There is no evidence of treatment if
any given to the victim except the routine and mechanical endorsement that patient
was conscious and coherent and fit to give statement.
it noted that there is no evidence by any of the doctor as to when the deceased
succumbed to the injuries except that he was found dead at 9.30 p.m., that is to say, within two hours from the time of
recording of Ex.P-8 Dying Declaration.
may also be noted that altogether 63 injuries were found on the body of the
victim including injuries 1 to 13 and 19 on the parietal and occipital regions,
which were grievous in nature. Injuries 1 to 22 were on the neck and above
neck. According to the evidence of P.W.10 Professor and Doctor of Forensic
Medicine, who conducted the post-mortem examination, diffused subarchanoid haemorrhage
was present all over the brain. He stated that subarchanoid haemorrhage results
in patient going into coma and persons receiving such injuries cannot be
coherent. He further stated in his evidence that on account of bleeding from
injury of cut laceration 15 X 2 cms. bone deep present on both the sides of
maxillary and middle of nose the patient would be gasping for breath and will
not be in a position to take respiration through nose but can breath through
mouth. The deceased might have died within one or two hours after receiving the
injuries mentioned in Ex.P-18 Post-mortem examination. The evidence of this
witness suggest that the victim could not have deposed for such a long duration
of about an hour continuously. His condition was found to be precarious by
Inspector of Police (P.W.9) even at 5.30 p.m.
value of Dying Declaration:
There is a historical and a literary basis for recognition of dying declaration
as an exception to the Hearsay Rule.
authorities suggest the rule is of Shakespearian origin.
"The Life and Death of King John", Shakespeare has Lord Melun utter
what a "hideous death within my view, retaining but a quantity of life,
which bleeds away,..lost the use of all deceit" and asked,"Why should
I then be false, since it is true that I must die here and live hence by
Shakespeare, The Life and Death of King John act.
sc.2, lines 22-29.
passing upon admissibility of an alleged dying declaration, all attendant
circumstances should be considered, including weapon which injured the victim,
nature and extent of injuries, victim's physical condition, his conduct, and
what was said to and by him.
This Court has consistently taken the view that where a proper and sufficient
predicate has been established for the admission of a statement under dying
declaration, Hearsay exception is a mixed question of fact and law.
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 asmuch 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.
is not difficult to appreciate why dying declarations are admitted in evidence
at a trial for murder, as a striking exception to the general rule against
hearsay. For example, any sanction of the oath in the case of a living witness
is a thought to be balanced at least by the final conscience of the dying man.
Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration
has got sanctity and a person giving the dying declaration will be last to give
untruth as he stands before his creator. There is a legal maxim "Nemo Moriturous
Praesumitur Mentire" meaning, that a man will not meet his maker with lie
in his mouth.
and Amir Ali, in their treatise on Evidence Act state : "when a man is
dying, the grave position in which he is placed is held by law to be a
sufficient ground for his veracity and therefore the tests of oath and cross-
examination are dispensed with."
The court has to consider each case in the circumstances of the case. What
value should be given to a dying declaration is left to court, which on
assessment of the circumstances and the evidence and materials on record, will
come to a conclusion about the truth or otherwise of the version, be it
written, oral, verbal or by sign or by gestures.
also a settled principle of law that dying declaration is a substantive
evidence and an order of conviction can be safely recorded on the basis of
dying declaration provided the court is fully satisfied that the dying
declaration made by the deceased was voluntary and reliable and the author
recorded the dying declaration as stated by the deceased.
court laid down the principle that for relying upon the dying declaration the
court must be conscious that the dying declaration was voluntary and further it
was recorded correctly and above all the maker was in a fit condition -
mentally and physically - to make such statement.
Smt. Paniben vs. State of Gujarat , this court while stating that a dying
declaration is entitled to great weight however cautioned to note that the
accused has no power to cross-examination.
a power is essential for eliciting the truth as an obligation of oath could be.
This is the reason the Court also insists that the dying declaration should be
of such a nature as to inspire full confidence of the Court in its correctness.
The Court has to be on guard that the statement of deceased was not as a result
of either tutoring, prompting or a product of imagination. The Court must be
further satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailants. Once the Court is satisfied
that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. this Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as under:
There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376;
2 SCR 764.
If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav) (1985) 1 SCC 552: 1985 SCC (Cri)
127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164.
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. (K. Ramchandra Reddy v. Public Prosecutor)
(1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994.
Where dying declaration is suspicious it should not be acted upon without
corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426.
Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : AIR 1982
dying declaration which suffers from infirmity cannot form the basis of
conviction. (Ram Manorath v. State of U.P.)
(1981) 2 SCC 654 : 1981 SCC (Cri) 581.
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981
SCC (Cri) 364 : AIR 1981 SC 617.
Equally, merely because it is a brief statement, it is not be discarded. On the
contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza
v. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri)
519 : AIR 1979 SC 1505.
Normally the court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But
where the eyewitness has said that the deceased was in a fit and conscious
state to make this dying declaration, the medical opinion cannot prevail. (Nanahau
Ram and Anr. v. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri)
342 : AIR 1988 SC 912.
Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri)
585 : AIR 1989 SC 1519."
K. Ramachandra Reddy and another vs. The Public Prosecutor , the court having
noticed the evidence of P.W.20 therein who conducted the post-mortem that there
were as many as 48 injuries on the person of the deceased out of which there
were 28 incised wounds on the various parts of the body including quite a few
gaping incised injuries came to the conclusion that in view of those serious
injuries it was difficult to believe that the deceased would have been in a fit
state of mind to make a dying declaration. It was also a case where the
Magistrate did not put a direct question to the injured whether he was capable
mentally to make any statement. In the circumstances this court came to the
conclusion that the Magistrate committed a serious irregularity in "not
putting a direct question to the injured whether he was capable mentally to
make any statement." It has been observed that even though the deceased
might have been conscious in the strict sense of the term, "there must be
reliable evidence to show, in view of his intense suffering and serious
injuries, that he was in a fit state of mind to make statement regarding the
occurrence." The certificate issued by the doctor that the deceased was in
a fit state of mind to make statement by itself would not be sufficient to
dispel the doubts created by the circumstances and particularly the omission by
the Magistrate in not putting a direct question to the deceased regarding the
mental condition of the injured.
the case in hand before the actual recording of Ex.P-8 dying declaration, the
Magistrate (P.W.7) did not seek and obtain any opinion and a certificate or
endorsement from the duty doctor as to the physical and mental condition of the
declarant to give statement. The Magistrate did not put any question as to
whether the declarant was making a voluntary statement and whether he was in a
fit condition to make the statement and whether any sedatives had been
Padman Meher and anr. vs. State of Orissa relying upon the evidence of doctor
expressing the opinion that after receiving the injury the victim would not be
able to talk and the injury would have caused great shock and part of the body
could have been paralysed, this court came to the conclusion that the nature of
the injury was such that whether death was instantaneous or not, the shock
would have been such that the deceased would not have been in a position to
talk. of Punjab , relying on the evidence of the Medical Officer who conducted
the post-mortem examination on the body of victim to the effect that the
victim's vital organs like peritoneum, stomach and spleen were completely
smashed and that there were remote chances of his remaining conscious after
receipt of such injury, this court observed "it is impossible to believe
that he was in a fit state of mind and body to make any kind of coherent or credible
statement relating to the circumstances which resulted in his death.
he was quite near his Creator, dangerously so indeed, and we may accept that
his mind was then free from failings which afflict the generality of human
beings, like involving enemies in false charges. But; was too ill to entertain
any thoughts, good or bad, and he could not possibly even in a position to make
any kind of intelligible statement." The court accordingly refused to
place any reliance on the dying declaration and excluded the same from
Kanchy Komuramma vs. State of A.P. , this court while considering the
evidentiary value of a dying declaration noted that the prosecution for reasons
best known to it did not examine the doctor who made the endorsement on dying
declaration certifying that "the patient was in a fit state of mind to
depose" and having further noticed that no other witness was examined to
prove the certificate of the doctor held that the same creates a doubt as to
whether the patient was actually in a proper mental condition to make a
consciously truthful statement.
infirmity renders it unsafe to rely on the dying declaration. As a matter of
fact, the failure of the prosecution to establish that the deceased, before she
made the dying declaration, was in proper mental condition to make the dying
declaration detracts materially from the reliability of the dying declaration
and it would not be safe to rely upon it. That the dying declaration has been
recorded by Judicial Magistrate, by itself is not a proof of truthfulness of
the dying declaration, which in order to earn acceptability has still to pass
the test of scrutiny of the court. There are certain safeguards which must be
observed by a magistrate when requested to record a dying declaration. He must
record the dying declaration satisfying himself that the declarant is in a
proper mental state to make the statement. He must also obtain the opinion of
the doctor, if one is available, about the fitness of the patient to make a
statement and the prosecution must prove that opinion at the trial in the
manner known to law."
may now refer to the decisions upon which strong reliance was placed by the
learned counsel for the State in support of her submissions that the Dying
Declaration recorded by the Magistrate cannot be held to be unreliable merely
because the doctor who issued the certificate regarding fitness has not been
examined by the prosecution.
three Judges Bench of this court in Koli Chunilal Savji judgment this court in Maniram
vs State of M.P. , in which this court held that when the declarant was in the
hospital itself, it was the duty of the person recording the dying declaration
to do so in the presence of the doctor and after being duly certified by the
doctor that the declarant was conscious and in his senses and was in a fit
condition to make the declaration observed that the said requirements "are
of merely rule of prudence and the ultimate test is whether the dying declaration
can be held to be a truthful one and voluntarily given." This court took
the view that non-examination of the doctor and the doctor not making any
endorsement on the dying declaration itself is no ground to exclude the dying
declaration from consideration. This observation is to be understood in the
factual background and the circumstances in that case in which the Magistrate
who recorded the dying declaration, in his evidence categorically stated that
the doctor introduced the victim and when she asked the doctor about the
condition of the victim, the said doctor categorically stated that the victim
was in a conscious condition. The doctor made an endorsement on the Police yadi
indicating that victim was fully conscious. It was a case where the doctor
certified about the condition of the victim before the learned Magistrate
undertook to record the dying declaration. That apart there were two dying
declarations corroborating each other and there was no inconsistency in those
two dying declarations made.
Laxman vs. State of Maharashtra , a Constitution Bench of this
court held :
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 promoting 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.
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.
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.
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
The Constitution Bench in its authoritative pronouncement declared that there
is no requirement of law that dying declaration must necessarily contain a
certification by the doctor that the patient was in a fit state of mind
especially when a dying declaration was recorded by a Magistrate. It is the
testimony of the Magistrate that the declarant was fit to make the statement
gains the importance and reliance can be placed upon declaration even in the
absence of the doctor provided the court ultimately holds the same to be
voluntary and truthful. The judgment does not lay down a proposition that
medical evidence, even if available on record, as also the other attending
circumstances should altogether be ignored and kept out of consideration to
assess the evidentiary value of a dying declaration whenever it is recorded by
Constitution Bench resolved the difference of opinion between the decisions
expressed by the two Benches of three learned Judges in Paparambaka Rosamma and
of Gujarat (Supra) and accordingly held that there is no requirement of law
that there should be always a medical certification that the injured was in a fit
state of mind at the time of making a declaration and such certification by the
doctor is essentially a rule of caution and even in the absence of such a
certification the voluntary and truthful nature of the declaration can be
This court in Shanmugam alias Kulandaivelu vs. State of Tamil Nadu held the
proposition laid down in Paparambaka Rosamma vs. State of A.P. that "in
the absence of 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 subject to the satisfaction of a Magistrate" is no longer good law
in view of the larger bench decision in Laxman vs. State of Maharashtra. It is
further held the mere fact that the doctor, in whose presence dying declaration
was recorded, was not examined does not affect the evidentiary value to be
attached to the dying declaration. Neither of the decisions held that the
medical evidence, if any, is available on record and the attending
circumstances altogether be ignored merely because dying declaration has been
recorded by a Judicial Magistrate.
FEATURES OF THIS CASE:
the light of the stated legal principles we now proceed to discuss the peculiar
and striking features found in the case in hand. There are two dying
declarations, one recorded by Police Officer P.W.9 in Ex.P-10 and another by
the Magistrate P.W.7 in Ex.P-8. The incident of attack on the deceased is
alleged to have taken place at about 5.00 p.m. on 05.01.1998. The first dying declaration in Ex.P.10 has been recorded
at 6.00 p.m. at Casualty, Guntur Hospital, Guntur. The victim stated that on
05.01.1998 in the afternoon he went to see a cinema in the cinema hall situated
at Gorantala; "having witnessed the cinema came out. Sivayya, the younger
brother of Ankamma, resident of Koritepadu and Rajka by caste and four others
came upon me and all of them cut my face and head with hunting sickles. The
remaining four persons cut me with hunting sickles indiscriminately on my legs and
hands." He affixed his right thumb impression on the declaration. There is
a certificate at the end of the dying declaration issued by Casualty Medical
Officer to the effect that "Patient conscious coherent, fit mind to give
statement." In the second dying declaration recorded by Judicial
Magistrate of First Class P.W.7 in Ex.P8 the victim stated that he went to the
cinema hall at Gorantala in the evening at 5.00 p.m. with an intention to see
cinema. There Nallapati Sivayya (appellant) and other three persons, whom he
cannot identify, in all four in number came and cut him indiscriminately with
hunting sickles; and though number of people were present at the place of
incident, none came to his rescue. He also stated that he was one of the
accused in Ankamma's murder case and for that reason Sivayya who is known to be
his younger brother developed grudge and cut him with sickle along with three
persons. The recording of this second dying declaration commenced at 6.35 p.m. on 05.01.1998 and completed by 7.10 p.m. The Judicial First Class Magistrate made an
endorsement to the effect that he obtained the great toe impression of left
foot of the victim as his both hands and his right foot were bleeding with
multiple cut injuries and blood was oozing from them. The victim did not state
anything about the dying declaration recorded by P.W.9 in Ex.P-10. In Ex.P-10
recorded by the police officer, he implicated the appellant and four others and
stated that appellant has cut his face and head with hunting sickle and the
other four cut his legs and hands with hunting sickles.
second Dying Declaration (Ex.P-8) he implicated the appellant and only three
other persons. He made omnibus allegations against the appellant and three
other persons and not four other persons as stated in the first Dying
Declaration. It is strange that at 6.35 p.m. he was able to affix his right thumb impression but could not do so at 7.10 p.m when it is clear that blood was oozing on account of
multiple cut injuries from his both hands and right foot. In the first dying
declaration he allegedly stated that he went to see cinema in the noon and came out of the theatre around 5.00 O'clock but in the second Dying Declaration
he allegedly stated that he went to see the cinema at around 5.00 p.m. in the evening and at that time the incident had
the circumstances can it be said that the victim was conscious and coherent and
in a fit condition to give the statement? This aspect of the matter is required
to be considered in the background of victim receiving as many as 63 injuries
on his body including injuries 1 to 13 and 19 on the parietal and occipital
regions on account of which the victim could have gone into coma. The Professor
of Forensic Medicine & Medical Officer who conducted the post-mortem,
examined as P.W.11, is an important witness whose evidence has been altogether
ignored. He found diffused subarchanoid haemmorrhage present all over the brain
which normally results in patient going into coma. He also expressed his
opinion that the deceased must have died within one or two hours after
receiving the injuries. Can we ignore this vital piece of evidence ? Do we have
to accept that the victim having received 63 multiple injuries went on speaking
coherently from 6.00 p.m. onwards till 7.10 p.m., for about one hour and ten minutes? There is no
evidence and details of any treatment administered to the victim. Dr. B.G. Sugunavathi,
Casulalty Doctor, first noticed the victim dead at 9.30 p.m. on 05.01.1998 itself. There is no positive evidence as to
when the victim died even though he was admitted into the hospital with
multiple injuries. These cumulative factors and surrounding circumstances make
it impossible to rely upon the dying declarations that were recorded in Ex.P-10
and Ex.P-8. These are the circumstances which compel us not to ignore the
evidence of P.W.10 - Doctor and Professor of Forensic Medicine. It is not a
question of choosing between the eye-witness account as regards the condition
of the victim to make a statement on the one hand and the evidence of the
Professor and Doctor of Forensic Medicine . The conflict and inconsistency
between the two dying declarations and the evidence of the Forensic Expert
which remained unimpeached raises a very great suspicion in the mind of the
is the duty of the prosecution to establish the charge against the accused
beyond reasonable doubt. The benefit of doubt must always go in favour of the
accused. It is true that dying declaration is a substantive piece of evidence
to be relied on provided it is proved that the same was voluntary and truthful
and the victim was in a fit state of mind. The evidence of Professor of
Forensic Medicine casts considerable doubt as regards the condition of the
deceased to make a voluntary and truthful statement. It is for that reason
non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said
to have been present at the time of recording of both the Dying Declarations
attains some significance. It is not because it is the requirement in law that
the doctor who certified about the condition of the victim to make a Dying
Declaration is required to be examined in every case. But it was the obligation
of the prosecution to lead corroborative evidence available in the peculiar
circumstances of the case.
This court in Sabbita Satyavathi vs. Bandala Srinivasarao and ors refused to
place reliance upon the dying declaration of the victim recorded by the
Assistant Civil Surgeon at Government Hospital where the deceased was brought in
injured condition. The court came to the conclusion that having regard to the
injuries sustained by the deceased he would not have been in a position to make
any statement even if he was alive when brought to the hospital. He must have
become unconscious soon after suffering the injuries and there was no question
of his either making a statement before P.W.1 or before the Medical Officer.
Medical Officer admitted that the death of the deceased was due to injuries to
vital organs such as heart and lung. This court having regard to nature of
injuries, entertained a serious doubt as to whether the injured could have
given two dying declarations as alleged by the prosecution, one at about 7.00 p.m. and another at about 8.45 9.00 p.m. The court relied upon the medical evidence on record
inasmuch as doctor herself stated that if such an injury is caused to heart the
injured would become unconscious immediately. There was, therefore, no question
of his making a dying declaration to anyone thereafter. anr. this court while
considering the significance of the evidence of the doctor observed :
it is true that the post-mortem report by itself is not a substantive piece of
evidence, but the evidence of the doctor conducting the post-mortem can by no
means be ascribed to be insignificant. The significance of the evidence of the
doctor lies vis-`-vis the injuries appearing on the body of the deceased person
and likely use of the weapon therefore and it would then be the prosecutor's
duty and obligation to have the corroborative evidence available on record from
the other prosecution witnesses."
Kailash vs. State of M.P. this court while adverting to the
question as to the course open to the courts where oral evidence is to be found
inconsistent with the medical evidence observed :
however, oral evidence is found to be inconsistent with the medical evidence,
the question of relying upon one or the other would depend upon the facts and
circumstances of each case. No hard-and-fast rule can be laid down therefor."
the medical evidence be altogether ignored ?
This court in State of Rajasthan vs. Bhanwar Singh observed :
ocular evidence has to be given importance over medical evidence, where the
medical evidence totally improbabilises the ocular version that can be taken to
be a factor to affect credibility of the prosecution version."
our considered opinion, the medical evidence and surrounding circumstances
altogether cannot be ignored and kept out of consideration by placing exclusive
reliance upon the testimony of person recording a dying declaration.
The Dying Declaration must inspire confidence so as to make it safe to act
upon. Whether it is safe to act upon a Dying Declaration depends upon not only
the testimony of the person recording Dying Declaration be it even a
Magistrate but also all the material available on record and the circumstances
including the medical evidence. The evidence and the material available on
record must be properly weighed in each case to arrive at proper conclusion.
court must satisfy to itself that the person making the Dying Declaration was
conscious and fit to make statement for which purposes not only the evidence of
persons recording dying declaration but also cumulative effect of the other
evidence including the medical evidence and the circumstances must be taken
is unsafe to record conviction on the basis of a dying declaration alone in
cases where suspicion is raised as regards the correctness of the dying
declaration. In such cases, the court may have to look for some corroborative
evidence by treating dying declaration only as a piece of evidence.
the present case it is difficult to rest the conviction solely based on the
dying declarations. The deceased sustained as many as 63 injuries. Having regard
to the nature of injuries the deceased may not have been in a position to make
any statement before P.W. or before P.W.7.
the Inspector admitted that the condition of the deceased even at 5.30 p.m. was very precarious. P.W.10 Professor and Doctor of
Forensic Medicine admitted injuries 1 to 13 and 19 could have resulted in the
deceased going into coma.
are not satisfied that the prosecution has proved its case against the
appellant beyond reasonable doubt.
is entitled to the benefit of doubt. We, therefore, allow this appeal and
acquit the appellant of the charges leveled against him. The appellant is
therefore directed to be released forthwith provided he is not required in
connection with any other case or cases.
Pages: 1 2