The genuineness of dying declaration and the necessity of medical certification are crucial in determining its reliability and admissibility.

JUDGMENT - A.S. AGUIAR, J.:---The accused/appellant herein has challenged his conviction under section 302 I.P.C. by the learned Sessions Judge, North Goa, by Order dated 12th January, 2000 in Sessions Case No. 5 of 1999. The challenge to the conviction is, inter alia, on the ground that the dying declaration recorded by the S.D.M. (Exb. 8) cannot be relied upon as the said dying declaration has not been proved.

2. The case of the prosecution is that on 16-11-1998, the accused/appellant herein, a neither of the deceased and P.W. 7, had a quarrel with the deceased over the demand of money. Upon the deceased refusing to give him money, the accused suddenly became violent, criminally trespassed into the house of the deceased/complainant and assaulted her on the head with an iron chair, causing injuries to her head. The accused, thereafter, poured kerosene on the body of the complainant and set her on fire with a matchstick, as a result of which the complainant sustained grievous burn injuries and, ultimately, died at the Goa Medical College Hospital, Bambolim, on 25-11-1998.

3. The prosecution has, in all, examined thirteen witnesses. One witness, A.S.I. Shro Chandrakant Naik, has been examined as Court witness. The deceased, wife of P.W. 7, is the complainant. Her complaint was recorded by the Police in the Hospital and treated as the F.I.R. However, prior to recording her statement, the dying declaration of the deceased was recorded by S.D.M. Ponda, Shri Narayan Das Agarwal, P.W. 1. Admittedly, there is no direct evidence of any witness, who has seen the actual incident of the accused assaulting the complainant deceased with the chair on the head and thereafter pouring kerosene on her body and setting her on fire with a matchstick. Therefore, the case of the prosecution rests on circumstantial evidence and the main circumstance is the dying declaration recorded by P.W. 1 Shri Narayan Das Agarwal, S.D.M. Ponda. The said dying declaration has, been assailed by learned Counsel for the accused inter alia on the following grounds, namely :

(1) That the deceased complainant suffered 70% burn injuries. The inquest panchanama recorded by S.D.M. Agarwal (P.W. 1) ten days after the incident showed both hands and fingers of the deceased were burnt. P.W. 1 has, in his evidence, stated that after he recorded the dying declaration of the complainant deceased, he obtained her thumb impression and he has identified the same. It is the submission of the learned Counsel on behalf of the appellant that, obviously, due to the burn injuries on the fingers of the complainant deceased, it would have been next to impossible to obtain the thumb impression of the deceased on the dying declaration.

(2) The dying declaration (Exh. 8) does not have the endorsement of the Doctor who was treating the injured stating that the injured was in a fit state of mind and body to record her dying declaration. P.W. 1 Narayan Das Agarwal has stated that he proceeded to the Casualty Department of the Goa Medical College Hospital at Bambolim after he received a letter from P.S.I. of Ponda Police Station requesting him to record the statement of a person who had sustained 70% burn injuries. That after going to the Casualty Department, he contacted the Doctor on duty who opined that the injured was in a condition to give statement and that since Sayeeda has sustained 70% burn injuries she was likely to die due to the said injuries. P.W. 1 thereafter recorded Sayeeda's statement which is treated as dying declaration. After recording the same, he obtained her thumb impression, which he has identified. In his cross-examination, P.W. 1 has stated that he has not mentioned in his statement (Exh. 8) about the condition of the deceased Sayeeda nor did he mention in the said statement that he had taken permission of any particular doctor. However, he added that the Police had sent a separate letter to the Medical Officer on which the Medical Officer had given his permission to record

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