Dying Declaration shouldn't be discarded merely because doctor failed to certify victim's State of Mind: Orissa HC

Cuttack: The Orissa High Court bench recently clarified that merely because the attending doctor failed to certify the correct state of mind of a deceased before recording his/her dying declaration, it would not make the dying declaration unreliable.

Such observations were made by the HC bench comprising of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash while upholding the order of the Sessions court, Puri which had held a man guilty of raping a 15-year-old girl and then burning alive.

"The dying declaration implicates the accused of both offences viz., of rape and murder. Although the vaginal swab did not indicate the presence of spermatozoa, it has to be recalled that the swab was itself taken three days after the deceased was admitted to the hospital and in a condition of 95% burns. Therefore, the mere absence of forensic corroboration of the dying declaration on this aspect will not falsify the dying declaration, which has otherwise been held to be voluntary and truthful. Consequently, this Court concurs with the trial Court as far finding the Appellant guilty of the offence under Section 376 IPC is concerned," observed the bench.

The matter concerned a 15 years old girl who died after allegedly being raped and burned alive by the appellant. While considering the matter, the Additional Sessions Judge, Puri had convicted the man, who is the appellant before the HC bench, under Sections 302 and 376 of IPC. The trial court had arrived at this conclusion while relying upon the dying declaration made by the deceased girl before the attending doctor at the District Headquarter Hospital, Puri.

Challenging the order of the trial court, the appellant approached the High Court bench. The counsel for the appellant, Mr. Bikram Chandra Ghadei argued that there was no certification by the doctor to ascertain that the victim was conscious and in a fit state of mind to make the declaration. Referring to this fact, the appellant's counsel argued that the trial court ought not to have accepted the dying declaration.

He relied upon the order in the case of Surinder Kumar v. State of Haryana and also pointed out that the mother did not endorse the dying declaration as a witness despite her throughout presence. Further he argued that with 95% burns, it was very unlikely that the deceased was in a fit state of mind to make any statement. Therefore, the dying declaration should be discarded, argued the counsel for the appellant.

On the other hand, the counsel for the State, Additional Government Advocate submitted that the dying declaration had been correctly recorded by the attending doctor at the Puri district Hospital, who was a government servant. Further, the Government counsel pointed out that the doctor was nowhere related with either the deceased or the Appellant.

At this outset, the state counsel referred to the Constitution Bench decision of the Supreme Court in the case of Laxman v. State of Maharashtra, where the top court bench had clarified that even in the absence of certification by the doctor as to the mental status of the deceased, the dying declaration could be relied upon.

Taking note of the submissions, the HC bench observed that the doctor was aware of the patient's condition and observed,

He clearly mentions "at the time of recording the statement, though she was able to talk but was suffering from severe pain".

The bench noted that the doctor was aware of what he was doing and observed,

"There was no need for him to write up a dying declaration which was never made. Merely because he did not endorse on the bed head ticket that the victim was in a conscious state would not mean that no such statement was ever made by her. The same also holds good for the criticism that the declaration was not in a question-answer form. These are not inviolable mandatory requirements for the acceptance of a dying declaration."

At this outset, the court also referred to the order of the Constitution bench of the Supreme Court in the case of Laxman v. State of Maharashtra (supra) where the Apex Court had observed, "What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

Referring to the Apex court's observations, the HC bench observed,

"The Court is not persuaded that in the present case the dying declaration was not voluntarily made by the deceased or not in a conscious state of mind and that it should be discarded...In the present case, the doctor was very much present when the statement was made and in fact it is the doctor who recorded it. Each case, therefore, turns on its own facts and it cannot be laid down as inviolable general rule that without certification of the state of consciousness of the deceased, a dying declaration recorded without such endorsement should be rejected."

"In the present case, the dying declaration unequivocally and unambiguously points to the guilt of the Appellant on both counts i.e., for the offence under Section 376 of IPC and of murder under Section 302 of IPC. This is not a case where inconsistent dying declarations have been made by the deceased. The fact remains that although she was burnt alive at around 2 am on 10th May, 2012, she remained alive till the noon of 13th May, 2012, i.e., for well over three days. Further, she remained alive for almost 48 hours after the making of the dying declaration at 9 pm on 11th May, 2012. Her state of mind to make the dying declaration has to be assessed in the above background notwithstanding that she suffered 95% burns," the bench clarified.

Further referring to several other judgments of the Supreme Court in the cases including Nallapati Sivaiah v. Sub-Divisional Officer, Guntur A.P. and State of Rajasthan v. Yusuf (supra) and observed, "The medical evidence does show that the death was due to ante-mortem burns which were extensive. The forensic evidence has also supported the case of the prosecution regarding the deceased being killed by burning."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/orissa-high-court-189565.pdf

Also Read: Dying Declaration Made to Doctor Admissible in Court: Orissa HC