Case: Panchdeo Singh Vs. State Of Bihar

After receipt of this order I went to Sadar Hospital, Dhanbad on the same day and recorded dying declaration of the said injured at 11.20. I recorded it, in the presence of Dr. Raman Shanker Prasad. I recorded his statement as stated by the injured and the same was read over to him. He marked his signature after being found the statement correct. That statement is scribed and signed by me. Dying declaration is marked as Ex.5." In cross-examination, the witness stated :- "xxxxxxxxxxxxxx 3. Before recording dying declaration I asked to the injured about his name etc. He was in a fit condition to make the statement or not, I did not put up any other question to know about it. He voluntarily stated his name and full address, therefore, I got satisfied myself that he was in fit condition to make the statement. The statement was read over to the injured and he marked his signature after being found it correct which is not on my record. Below the statement "Ram Singh" has been mentioned, therefore, I state that the injured marked his signature. I do not recollect as to whether he put his signature or not. There is no mention of L.T.I. before "Ram Singh". L.T.I. of Ram Singh is not on the dying declaration. 4. The injured was not previously known to me. The injured was introduced by the doctor. This fact has not been noted down by me on the dying declaration." 9. The issue thus arises for consideration as to whether a declaration, as above, by itself would tantamount to substantial evidence against the appellant herein warranting the conviction and sentence as affirmed by the High Court. 10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration. 11. As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration.As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case.