Dying Declaration Made to Doctor Admissible in Court: Orissa HC
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Cuttack: The High Court of Orissa recently made it clear that dying declarations made to a doctor is very much admissible in court since the doctor is the best person to assess the mental state of the patient.
Such an observation was made by the HC bench comprising of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik while it was considering a case concerning burn injury victim who died after recording his declaration to her doctor.
Holding that such a declaration cannot be doubt merely because there was no certificate regarding the mental state of the deceased at the time of recording declaration, the bench noted, "In the instant case, the deceased made her statement before P.W.10 and by then, she had already been in the hospital for more than fifteen days. That apart, 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."
The main case concerned a patient who succumbed to burn injuries. An informant had lodged a complaint against the husband of the victim describing the alleged incident back in 2003. Accordingly, a case was registered under Section 307 IPC. After the patient died, the husband of the victim, who is the appellant before the High Court, was charge sheeted under Section 302 IPC.
During the court proceedings, the prosecution adduced oral and documentary evidence during the trial. On the other hand, the Appellant did not lead any evidence. The court of Additional Sessions Judge considered the evidence of the prosecution and defence plea of the Appellant and finally concluded that the deceased suffered a homicidal death and for that, held the Appellant to be liable. As a consequence, the Appellant was convicted under Section 302 IPC and sentenced accordingly.
Approaching the High Court, the counsel for the Appellant argued that the court of Additional Sessions Judge had fallen 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.
He further contended that 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.
The counsel for the appellant also pointed out that even though the doctor had sufficient time 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.
On the other hand, the counsel for the State, the AGA contended 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 and besides 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.
The AGA further defended the dying declarations made by the deceased and submitted that 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. Further referring to the contention 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, the AGA submitted that in absence of all these things, the evidence does not lose its probative value.
"Initially, the Appellant had admitted the victim in the hospital by claiming that the incident of fire had taken place accidentally. Only after the disclosure made by the victim, the F.I.R. was lodged. Furthermore, the statement of the deceased under Section 161 Cr.P.C. was treated as a dying declaration besides another recorded by the doctor at the hospital, while she was under treatment. Admittedly, there is no direct evidence visa-vis the alleged incident. The prosecution's version is based on the dying declarations besides the oral testimony," the bench noted at this outset.
The counsel for the appellant placed reliance upon Court orders in the case of Shyam Shankar Kankaria v. State of Maharashtra 2006 and Rupa Tiria v. State of Odisha 2012 and contended that that the dying declarations are not dependable as they did not follow the procedure which one is legally required to do and comply.
On the other hand, the AGA referred to decision of Supreme Court in Laxman v. State of Maharastra and contended that a certification of doctor is a rule of caution and therefore, the truthfulness of the declaration can be established otherwise. He further cited several other rulings of the Supreme Court in the case of Sohan Lal @ Sohan Singh and others v. State of Punjab, Kushal Rao v. State of Bombay AIR 1958, and State of U.P. v. Veerpal and another.
Referring to the Supreme Court order in the case of Shyam Shankar Kankaria, the Court was of the opinion that in Shyam Shankar Kankaria case, the Supreme Court held that the dying declaration can be the sole basis of conviction but the court has to be on guard to ensure that it was not on account of tutoring or prompting or a product of imagination, as it has to be further satisfied that the deceased was in a fit state of mind.
"In the instant case, the deceased made her statement before P.W.10 and by then, she had already been in the hospital for more than fifteen days. That apart, 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. Furthermore, the evidence of P.W.10, if read along with P.W.1 and P.W.2, it would suggest that initially the deceased was not in a condition to speak but after having gained sense, she disclosed the conduct of the Appellant and during that time, the dying declaration under Ext.4 was recorded," noted the court as it stated that it had not reason not to accept the dying declaration.
Further, the bench referred to the recent judgments by the Supreme Court in the case of Sri Bhagwan v. State of U.P and observed that a statement recorded under Section 161 Cr.P.C. may be relied upon as a dying declaration as per section 32 of Indian Evidence Act, 1872.
"In view of the above, the Court finds no basis not to accept the dying declaration in question," noted the HC bench.
Addressing the contention of the AGA in referring to the Supreme Court order in the case of Laxman v. State of Maharastra, the HC bench observed, "In the decision (supra), 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 ifso facto render the declaration unacceptable, inasmuch as, its evidentiary value would rather depend on the facts and circumstances of the case. However, in the present situation, P.W.10 is the doctor, who recorded the dying declaration of the deceased and therefore, he was the right person to assess the mental condition of the victim. Since couple of days before the death of the deceased, when she was in a condition to speak, her dying declaration was recorded by P.W.10, the Court does not find any such ground not to accept it merely for the reason that it has not been endorsed with a certificate."
Referring to the other judgments of the Supreme Court, the HC bench noted, "In Sohan Lal case, it is 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 case, the Supreme Court held that a dying declaration if found to be a truthful version of declarent, 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 Veerpal case, the Apex Court referring to the decision in Kushal Rao 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."
Therefore, the bench clarified that the dying declaration made before the doctor was admissible in court as the doctor was able to understand the language of the victim. On top of that, being a doctor, he could assess the mental state of the victim.
Upholding the earlier court order, the HC bench stated, "In view of the above analysis, the Court is of the conclusion that the evidence of the prosecution was properly appreciated by the learned court below to hold the Appellant guilty for having caused death of the deceased. The defence plea of the Appellant cannot be sustained in view of the overwhelming evidence led by the prosecution. In other words, the prosecution was able to prove its case beyond reasonable doubt and therefore, the Court finds no reason to disturb the order of conviction."
To read the HC order, click on the link below.
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