1998 Supreme(Guj) 640

Gujarat High Court
Judgename :A.M.KAPADIA, J.N.Bhatt
HARSHAD - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 388 of 1992
Decided On : 11/26/1998

Headnote:(a) Evidence Act, 1872 - Sec. 32(1) - Dying declaration - Endorsement of doctor is not the condition to place reliance - Even in absence of such endorsement by doctor, dying declaration is admissible and can be relied upon - It is also held that non-examination of doctor making endorsement would not render dying declaration unworthy of credit.

       It is not necessary that in order to place reliance on the dying declaration there ought to be an endrosement of the medical officer, invariably, as a matter of course and that if such endorsement is not proved, it has to be thrown in the wind. Such a contention was advanced before us and we are of the opinion that insofar as the recording of dying declaration is concerned, the main anxiety of the person recording the dying declaration of the declarant should be to see that he is in a position to make rational and reasonable statement with regard to the important aspects of the incident, whether, he is in fit state of mind or not could be certified by the Medical Officer, and it could also be verified by the person recording the dying declaration. It cannot be taken as a matter of course that, whenever, the medical opinion is not obtained about the mental condition of the declarant and even if it is taken in the form of patient conscious and not that patient was in fit state of mind and that too in absence of medical evidence would turn out to be fatal to the dying declaration in its entirety. It is true that as far as possible and so long as the medical personnel is available for such an endrosement, the person recording dying declaration ought to ascertain the mental condition of the declarant so that it could be found upon the medical examination whether the injured is in a position to make a rational statement or not.

       [Para 29]

       The proposition advanced before us that in order to rely on or to consider the written dying declaration, the medical endorsement of the mental state of the injured being fit and the proof thereof in the evidence of The Medical Officer is compulsory, cannot be propounded as a proposition of law nor such a proposition could be made applicable to other cases diverse from the factual context.

       [Para 35]

       (b) Evidence Act, 1872 - Sec. 32(1) - Dying declaration - Important principles of law relating to dying declaration - Indicated.

       Let us, now, highlight the important principles of law relating to dying declaration.

       (i)

       Mode of dying declaration is not prescribed, but ordinarily, it should be in a question and answer form, but not following this method would not, in any way, render the dying declaration weak piece of evidence.

       (ii)

       In fact, a dying declaration is a statement made by a person as to cause of death or as to in what circumstances and transactions it resulted in his/her death, and therefore, it becomes relevant under Sec. 32(1) of the Evidence Act. Dying declaration is not a deposition, but the statement of a person made in the teeth of fast approaching death assures the credibility of the statement.

       (iii)

       Unlike English law, Sec. 32(1) makes relevant not only the statement to the cause of his death but as to the circumstances of transaction resulting in his death. The grounds of admission are : (a) necessity for the victim being generally the only principal eye-witness to the crime, (b) the exclusion of his or her such a statement might defeat the ends of justice and (c) the sense of impending death, which creates a sanction, equal to the obligation of an oath, (d) dying declaration is a substantive piece of evidence and, therefore, conviction could be based upon the dying declaration, may be oral or written, provided it is shown to the satisfaction of the Court that the declaration and the statement made by the deceased was voluntary, truthful and untutored and in a fit mental condition.

       (iv)

       Section 32, itself is an exception to the rule of hearsay and makes admissible the statement of a person who dies whether the death is homicide or suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.

       (v)

       The Sec. 32(1) of the Evidence Act widens the scope and sphere than the English provision in respect of not only the cause of death stated by the deceased but any of the circumstances of transaction which result in his death in case in which because of that person the death comes into question.

       [Para 28]

       (c) Evidence Act, 1872 - Sec. 154 - Question by party to his own witness - Discretion of Court to permit - However Court should not exercise discretion in a casual or routine manner.

       The statutory provisions incorporated in Sec. 154 of the Evidence Act it provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. In criminal proceedings when a permission is sought by the Prosecutor with the aid of Sec. 154 of the said Act and questions are put, the witness is treated as hostile witness.

       [Para 15]

       The Court before permitting the party calling the witness to cross-examine him is obliged to assess, weigh and scan the circumstances in proper perspective and properly and should not exercise its discretion in a casual or routine manner,

       [Para 15]

       (d) Evidence Act, 1872 - Sec. 154 - Hostile witness - Creditibility - Ordinarily Court may not base conviction on the sole testimony of such witness but can use that portion of his evidence which is compatible and consistant with prosecution case.

       The evidence of the prosecution witness, who has turned hostile, cannot be rejected, wholesale, merely on the ground that the prosecution had dubbed him or her, as the case may be, as hostile and had cross-examined him.

       [Para 15]

       ordinarily, in such a case the Court may not base the conviction on such evidence. However, whatever the evidence is favourable and compatible and consistent with the case of the prosecution borne out from the evidence of the hostile witness could, positively and definitely, be taken into consideration for assessment of the entire evidence along with other relevant evidence.

       [Para 17]

       (e) Criminal Trial - Appreciation of evidence - Principles of - A part of the prosecution evidence disbelieved - That by itself no ground to reject whole evidence.

       It cannot be contended that a part of the prosecution evidence if disbelieved by the Court would culminate into rejection of the whole evidence. The prosecution that `falsus in uno, falsus in omnibus has not been recognised in the criminal proceedings under our criminal jurisdiction. This proposition is very well established since long and requires no further elucidation or support from any case-law.

       [Para 58]