Dying Declaration Made To Doctor Can't Be Discarded Only Because Certificate Of Fit Mental State Not Appended: Orissa High Court

"…P.W.10 was able to understand the language of the victim and being a doctor, he was the best person to assess her mental state. It is not that somebody else recorded the dying declaration of the victim and its acceptance is hence suspected for want of certificate of a doctor. Absence of a certificate on Ext.4 with regard to the mental state of the deceased, according to the Court, is not of much concern, when it was recorded by none other than a doctor himself."

Factual Background:

The informant (father of the deceased) lodged the FIR describing therein about the alleged incident. Subsequently, a case was registered under Section 307, IPC. Later on, the victim succumbed to burn injuries. Accordingly, the appellant was charge-sheeted under Section 302 IPC. The prosecution adduced oral and documentary evidence during the trial. On the other hand, the Appellant did not lead any evidence.

The learned court below considered the evidence of the prosecution and defence plea of the appellant and concluded that the deceased suffered a homicidal death and held the appellant to be liable for murder. As a consequence, the appellant was convicted under Section 302, IPC and sentenced accordingly. Therefore, the appellant challenged his conviction in this appeal.

Contentions of the Appellant:

Mr. D. Das, amicus curiae for the appellant, contended that the court below fell into serious error by holding the appellant guilty without properly appreciating the evidence on record and for being ignorant of the settled position of law vis-à-vis admissibility of the dying declarations. It was again submitted that the dying declaration before the doctor was not worthy of acceptance since it did not have any endorsement to indicate that the deceased was by then in a fit state of mind. He stressed that though there was sufficient time for the doctor to examine the condition of the victim and record her dying declaration in presence of the I.O. or a Magistrate but it was not done.

In this regard, he cited the decisions in Shyam Shankar Kankaria v. State of Maharashtra and Rupa Tiria v. State of Odisha, 2012 (I) ILR- CUT Cuttack 334 contending that the dying declarations are not dependable as the doctor and the I.O. did not follow the due procedure.

Contentions of the Respondent:

Mr. J. Katikia, the Additional Government Advocate for the respondent, contended that the court below did not commit any error or illegality. He claimed, the impugned order of conviction vis-à-vis the Appellant is absolutely justified and in accordance with law. He pointed out that the deceased disclosed to her family regarding the fact that the appellant was responsible for setting her to flame by pouring kerosene on her body which could not have been discarded by the learned court below. Apart from that, she even made a statement before the I.O. reiterating it and furthermore, revealed the same to the doctor just prior to her death.

According to Mr. Katikia, the above dying declarations having been on record, those could not have been brushed aside. Therefore, those were rightly taken cognizance of by the learned court below, when the law is well settled that a dying declaration can be the sole basis of conviction, if it is otherwise found to be true and voluntary. While responding to the submission of Mr. Das that the doctor did not append any certificate to the dying declaration nor it was recorded in presence of the I.O. or a Magistrate, he responded that in absence thereof, the same does not lose its probative value.

He placed reliance on the decision of the Supreme Court in Laxman v. State of Maharashtra, contending that a certification of doctor is a rule of caution and therefore, the truthfulness of the declaration can be established otherwise. In that decision, the dying declaration was recorded by a Magistrate and there was no certification by the doctor regarding the fitness of the victim's state of mind and in that context held that it would not ipso facto render the declaration unacceptable, inasmuch as, its evidentiary value would rather depend on the facts and circumstances of the case.

Court's Observations:

The Court duly endorsed the views taken in some of the leading decisions of the Apex Court, which were cited by the learned Additional Government Advocate, wherein, the settled principle of law with regard to dying declaration and its evidentiary value has been precisely stated. In Sohan Lal @ Sohan Singh & Ors. v. State of Punjab, it was held that irrespective of having no endorsement of doctor on the fitness of mental condition of the deceased, there can be no reason to discard it especially when nothing was on record to suspect bona fide of the Tahasildar, who recorded the same.

In Kushal Rao v. State of Bombay, the Supreme Court held that a dying declaration if found to be a truthful version of declarant, no further corroboration would be necessary and reiterated the settled principle of law that a dying declaration has to clear the test of reliability. Similarly, in a recent decision in State of U.P. v. Veerpal & Anr., the Apex Court referring to the decision in Kushal Rao (supra) observed that a dying declaration would be acceptable if the court is satisfied that the deceased was in a fit mental condition to depose and it was made truthfully and voluntarily.

Accordingly, the Court observed that the doctor was able to understand the language of the victim and being a doctor, he was the best person to assess her mental state. It is not that somebody else recorded the dying declaration of the victim and its acceptance is hence suspected for want of certificate of a doctor. Therefore, absence of a certificate with regard to the mental state of the deceased, the Court held, is not of much concern when it was recorded by none other than a doctor himself.

Case Title: Anjari Rout v. State of Odisha

Case No.: JCRLA No. 88 of 2006

Judgment Dated: 04 May 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik

Judgment Authored By: Justice Radha Krishna Pattanaik

Counsel for the Appellant: Mr. D. Das, Amicus Curiae

Counsel for the Respondent: Mr. J. Katikia, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 58