1999 Supreme(SC) 1384

1999(8) Supreme 717
Supreme Court of India
(From Gujarat High Court)
G.B. Pattanaik, M. Srinivasan & N. Santosh Hegde, JJ.
Koli Chunilal Savji & Anr. -Appellants
versus
State of Gujarat -Respondent
Criminal Appeal No. 1786 of 1996
With
Criminal Appeal No. 1703 of 1996
Decided on 29-9-1999
Counsel for the Parties :
For the Appellants : R.N. Keshwani, and N.N. Keshwani, Advocates.
For the Respondent : Ms. Hemantika Wahi and Ms. Anu Sawhney, Advo­cates.

Important Point
Requirements of presence of doctor at the time of recording dying declaration and certification that the declarant was conscious and in senses and in fit condition to make declaration are mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given.

Headnote:(i) Indian Evidence Act, 1872-Section 32-Dying declaration-Require­ments of presence of doctor at time of recording and certification that declarant was conscious, in senses and in fit condition are mere rule of prudence-Ultimate test is voluntariness and truthfulness of declaration-Absence of endorsement of doctor in dying declaration and non-examination of doctor would not vitiate dying declaration.

       Held : The requirements of presence of doctor and certification that the declarant was conscious, in senses and in fit condition to make state­ment are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. Merely because the doctor has not been examined and the doctor has not made any endorsement on the dying declaration the same cannot be rejected. (Paras 7 & 8)

       In the instant case with regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categor­ically stated in her evidence that as soon as she reached the hospital in the Surgical Ward, she told the doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the Police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condi­tion. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that Dhanuben was fully con­scious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as F.I.R., and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt. (Para 8)

       (ii) Indian Evidence Act, 1872-Section 32-Dying declaration-Delay in recording-Consequence of-Time gap of 5 hours between occurrence of incident and recording of dying declaration-Cannot be branded as inordinate delay so as to vitiate declaration. (Para 8)

       (iii) Code of Criminal Procedure, 1973-Section 378 r/w 386-Appeal against acquittal-Powers of appellate court-Scope of.

       The power of the High Court while sitting in appeal against an order of acquittal is the same, as the power while sitting in appeal against the conviction and the High Court, therefore would be fully entitled to re-appreciate the materials on record and in coming to its own conclusion. The only compulsion on the part of the Appellate Court is to bear in mind the reasons advanced by the learned Sessions Judge, while acquitting the accused and indicate as to why those reasons cannot be accepted. (Para 9)

       (iv) Indian Penal Code, 1860-Sections 302 and 498A-Appeal against conviction for offence under-Acquittal by Trial Court disbelieving dying declaration-Re­appraisal of evidence by High Court-Conviction on basis of dying declarations holding that absence of endorsement of doctor on declaration about condition of victim could not vitiate genuineness of dying declaration-Held: High Courts judgment warrant­ed no interference. (Paras 7, 8 & 9)