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CASE NO.: Appeal (crl.)  1315 of 2005

PETITIONER: Nallapati Sivaiah

RESPONDENT: Sub-Divisional Officer, Guntur, A.P.

DATE OF JUDGMENT: 26/09/2007

BENCH: R.V. RAVEENDRAN & B.SUDERSHAN REDDY

JUDGMENT:

JUDGMENT

CRIMINAL APPEAL NO. 1315 OF 2005

B. Sudershan Reddy, J.

1.      This appeal arises out of judgment dated 30th March,  2005 of the High Court of Andhra Pradesh at Hyderabad in  Criminal Appeal No. 193/2003.  The appellant and two  others were tried for having committed the murder of Dasari  Srinivasa Rao alias Bujji by hacking  him with knives.  The  appellant and the two others were also tried for various  offences including the one punishable under the provisions  of Scheduled Caste and Scheduled Tribes (Prevention of  Atrocities) Act, 1989.  Accused No.2 was acquitted of all the  charges by the learned Sessions Judge, Guntur.  The learned  Sessions Judge however convicted the appellant and another  (A.3) for the offence punishable under Section 302 IPC and  were sentenced to imprisonment for life.  They were                 also fined Rs.5,000/- in default, each has to suffer   rigorous  imprisonment for two months.  Both of them were acquitted  of the charges framed under the provisions of the     Scheduled Caste and Scheduled Tribes (Prevention of  Atrocities) Act, 1989.  The appellant and accused No.3   preferred Criminal Appeal Nos.193/03 and 161/03   respectively.  The High Court upon appreciation of the  evidence on record confirmed the conviction of the appellant  under Section 302 IPC and accordingly confirmed the  sentence of the life imprisonment.  The Criminal Appeal No.  161/03 preferred by A.3 was allowed setting aside the  conviction and sentence imposed upon him.  The sole  appellant who is A.1 has  preferred this Criminal Appeal by  Special leave, challenging his conviction and sentence under  Section 302 IPC. 2.        The case of the prosecution in nut shell is that the  deceased Dasari Srinivasa Rao alias Bujji was an accused in  a case relating to the murder of brother of the appellant. On  05.01.1998 at about 4.30 or 5.00 p.m, the three accused  including the appellant herein chased the deceased and  attacked him  with knives while he was returning from  Vishnupriya Cinema theatre, Gorantala, Guntur, after seeing  a movie  causing multiple injuries leading to his death.  The  Sub-Inspector of Police (P.W. 9) reached the scene of  offence by 5.30 p.m. and found the injured (deceased) on  the road.  He shifted him to Guntur General Hospital.  At

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about 6.00 p.m., P.W.9 recorded a Dying Declaration (Ex.P- 10) in which the deceased implicated the appellant and four  others.  That another dying declaration was recorded by the  6th  Additional Magistrate, Guntur (P.W.7) which commenced  at 6.35 p.m. on 05.01.1998. The victim succumbed to the  injuries and died at about 9.30 p.m. on the same day in the  hospital.  P.W.10 \026 Professor and Doctor of Forensic  Medicine conducted the post-mortem on examination on  06.01.1998.  Ex.P-18 is the post-mortem Report issued by  him.  He found as many as 63 injuries on the body of the   deceased.  He expressed his opinion that the cause of death  was due to multiple injuries.  P.W.11 continued the  investigation and filed charge-sheet against the appellant  and two others.  3.      The prosecution examined 11 witnesses. P.W.1 to 4  were alleged to be the direct eye-witness (the Supervisor of  the cinema theatre, owners of a Hotel and tea stall on the  road side near the cinema theatre and person who  accompanied the deceased to the movie).  All  of them   turned hostile and did not support the prosecution case.   P.W.5, the mother of the deceased speaks only about the  motive.  Therefore, the entire prosecution case rests upon  the dying declarations in Ex.P-8 and Ex.P-10 recorded  respectively by P.W.7 and P.W.9. The Sessions Court as well  as the High Court relying upon the dying declarations  convicted the appellant.        The High Court found that before  the dying declarations were recorded "opinions of the  doctors attending on the deceased were also obtained in  Ex.P-7 and Ex.P-11, which clearly show that the deceased  was fit enough to make the statement when these dying  declarations were recorded.  Strange are the ways in which  human bodies react to different situations.  Though  superficially it appears that with 63 injuries on the body of a  person he would not be in a position to make a statement  but it appears that he was fit enough to make a statement."    The High Court came to the conclusion that the dying  declarations contained truthful statement of a dying man.   The High Court accordingly confirmed the conviction passed  by the trial court as against the appellant.         It is convenient now to return to the critical  submissions made at the bar.     SUBMISSIONS : 4.      Ms. Nitya Ramakrishna, learned counsel appearing for  the appellant argued with vehemence that the two dying  declarations cannot be relied upon inasmuch as Dr. T.  Narasimha Rao, the Casualty Medical officer, Government  General Hospital, Guntur who examined and allegedly  certified about the fitness of the deceased to give statement,  was not examined as a witness.  There is no evidence on  record indicating the physical and mental condition of the  deceased to the effect that he was in a fit condition to make  the statement.  The learned counsel also highlighted the  inconsistencies between the two dying declarations namely  one recorded by the Police  Officer (P.W.9) and another by  the learned Judicial First Class Magistrate (P.W.7).  The  learned counsel also further urged that the evidence of  P.W.  10 \026 Professor of Forensic Medicine  who conducted the  post-mortem which is relevant and material has altogether  been ignored by the courts below.  5.      Ms. D. Bharathi Reddy, learned counsel for the  respondent on the other hand submitted that the dying  declarations which have been relied upon by the High Court  in the facts and circumstances have been rightly held to be a  truthful and voluntary and, therefore, in law, can form the  sole basis for conviction.  The learned counsel strenuously

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contended that the dying declaration recorded by the  Magistrate cannot be held to be a doubtful one.  Besides the  learned counsel submitted that the doctor did make an  endorsement in both the dying declarations certifying that  the deceased was in a fit condition to make statement  and  was present at the time of recording of the statement.  Non  examination of the doctor is not fatal to the prosecution case  was the  submission. POINT FOR CONSIDERATION : 6.      In view of the rival submissions made during the course  of the hearing of the appeal, only one question really arises  for our consideration, namely, whether the two dying  declarations can be held to be true and voluntary and can be  relied upon to convict the appellant ?   Whether the dying  declarations suffer from any serious infirmities requiring  their exclusion from consideration ?    7.      In order to consider the said question it is just and  necessary to notice the contents of both the dying  declarations.  Ex.P-10 \026 Dying Declaration recorded by   Police Officer \026 P.W.9 on 05.01.1998 at 6.00 p.m. at  Casualty, Guntur General Hospital is to the following effect: "\005\005\005\005\005\005\005\005.. This day i.e. on 5.1.1998 Noon having went to  the cinema in the cinema hall situated at  Gorantla;having witnessed the Cinema came  out, there Sivayya the younger brother of  Ankamma, resident of Koritepadu and Rajka  by caste and four others came upon me and of  them Nallapaati Sivayya cut my face and head  with hunting-sickle.  The remaining 4 persons  cut me with hunting sickles (VETAKODAVLU)  indiscriminately, on my legs and hands.  I am  an accused in the Ankamma’s murder case.  Keeping it in mind, they cut me like this.  The  time was 4.30 \026 5.00 hours. I cannot sign as  there are cut-injuries on my two hands.  I can  subscribe the right thumb impression\005\005.."                 Dr. T. Narasimharao, C.M.O., Guntur General Hospital, made  an endorsement as "Pt. Conscious coherent, fit mind to give  statement."   8.       The Inspector of Police \026 P.W.9 in his evidence stated  that the deceased was profusely bleeding and his condition  was precarious even when the deceased was shifted to  Guntur General Hospital. He did not verify from the  deceased as to whether he was in a fit condition to give his  statement.  He noticed number of persons gathering around  the victim at the scene of occurrence.  He did not verify the  case sheet. He was not aware as to whether  any treatment  has been administered to the victim.  He commenced  recording the Dying Declaration (Ex.P-10) at 6.00 p.m. and  completed it by 6.25 p.m. 9.      Ex.P-8 is the dying declaration recorded by the learned  VIth Additional Magistrate, Guntur (P.W.7) in which the  learned Magistrate certified that the declarant was  conscious, coherent and in a fit condition to give statement.  It is in his evidence that he  did not verify from the doctor as  to whether the victim was in a fit condition to make the  statement before commencing the recording of dying  declaration.  He also did not verify the case sheet.  Even on  the second Dying Declaration,  Dr. T.Narasimharao made an  endorsement to the effect that "patient is conscious and  coherent. Fit mind to give statement while recording his  statement.  Statement recorded in my presence. Multiple cut  injuries on both hands and blood is oozing."  The material

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part of the dying declaration \026 Ex.P-8 is to the following  effect : "\005\005\005\005\005\005\005\005 This day evening at 5.00 hours time I went to  the Cinema Hall at Gorantla with an intention  to see cinema.  By the time I went to the  Vishnu Priya Cinema Hall, Nallapati Sivayya  and other three persons whom I do not know,  all four in total came and cut me  indiscriminately with hunt sickles.   A number  of people are there.  But none came to my  rescue.  I fell down for those hits. Then some  police having reached brought me to the  hospital.  This is the matter occurred. \005\005\005\005\005\005.."

10.     The learned Magistrate in his evidence stated that he  received the requisition from Casualty Medical Officer on  05.01.1998 at 6.25 p.m. to record the dying declaration of  the victim.  He immediately  rushed to the hospital and  identified the victim through the Casualty Medical  officer \026  Dr. T.Narasimharao.  He did not verify the case sheet either  before or after recording the statement. He admitted that  before recording the Dying Declaration  (Ex.P-8), he did not  obtain any certificate or endorsement of the doctor as to the  fitness of the victim to give statement.  The Magistrate  found multiple cut injuries on both hands, thumbs and right  foot and in the circumstances obtained the left great toe  impression on Ex.P-8.  It is specifically stated by him that  the blood was oozing from both the  hands and it was  difficult to obtain  either left or right thumb impression of  the  declarant. 11.     An objective and critical assessment of the material  available on record discloses that recording of dying  declarations commenced immediately after the victim was  taken to the hospital right from 6.00 p.m. onwards and went  on till 7.10 p.m.  It means the victim was speaking  coherently right from 6.00 p.m. to 7.10 p.m. on 05.01.1998.   It is not known as to what was the treatment administered  to the victim immediately after he was brought to the  hospital.   No explanation is forthcoming  as to why duty  doctor at Casualty was not examined. There is no evidence  of treatment if any given to the victim except the routine  and mechanical endorsement that patient was conscious and  coherent and fit to give statement. 12.     Be it noted that there is no evidence by any of the   doctor as to when the deceased succumbed to the injuries  except that he was found dead at 9.30 p.m., that is to say,  within two hours from the time of recording of Ex.P-8 \026  Dying Declaration. 13.     It may also be noted that altogether 63 injuries were  found on the body of the victim including injuries 1 to 13  and 19 on the parietal and occipital regions, which were   grievous in nature.  Injuries 1 to 22 were on the neck and  above neck.  According to the evidence of P.W.10 \026  Professor and Doctor of Forensic Medicine, who conducted  the post-mortem examination, diffused subarchanoid  haemorrhage was present all over the brain.  He stated that  subarchanoid haemorrhage results in patient going into  coma and persons receiving such injuries cannot be  coherent.  He further stated in his evidence that on account  of bleeding from injury of cut laceration 15 X 2 cms. bone  deep present on both the sides of maxillary and middle of  nose the patient would be gasping for breath and  will not be

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in a position to take respiration through nose but can breath  through mouth. The deceased might have died within one or  two hours after receiving  the injuries mentioned in Ex.P-18  \026 Post-mortem examination.  The evidence of this witness  suggest that the victim could not have deposed for such a  long duration of about an hour continuously.  His condition  was found to be precarious by Inspector of Police (P.W.9)  even at 5.30 p.m.  Evidentiary value of Dying Declaration: 14.     There is a historical and a literary basis for recognition  of dying declaration as an exception to the Hearsay Rule.   Some authorities suggest the rule is of Shakespearian origin.

15.     In "The Life and Death of King John", Shakespeare has  Lord Melun utter what a "hideous death within my view,  retaining but a quantity of life, which bleeds away,\005..lost  the use of all deceit" and asked,"Why should I then be false,  since it is true that I must die here and live hence by truth?"   William Shakespeare, The Life and Death of King John act.  5, sc.2, lines 22-29. 16.     In passing upon admissibility of an alleged dying  declaration, all attendant circumstances should be  considered, including weapon which injured the victim,  nature and extent of injuries, victim’s physical condition, his  conduct, and what was said to and by him.  17.     This Court has consistently  taken the view that where  a proper and sufficient predicate has been established for  the admission of a statement under dying declaration,  Hearsay exception is a mixed question of fact and law.  

18.     It is equally well settled and needs no restatement at  our hands that  dying declaration can form the sole basis for  conviction.  But at the same time due care and caution must  be exercised in considering weight to be given to dying  declaration in asmuch as there could be any number of  circumstances which may affect the truth.  This court in  more than one decision cautioned that the courts have  always to be on guard to see that the dying declaration was  not the result of either tutoring or prompting or a product of  imagination.  It is the duty of the courts to find that the  deceased was in a fit state of mind to make the dying  declaration.  In order to satisfy  itself that  the deceased was  in a fit mental condition to make the dying declaration, the  courts have to look for the medical opinion. 19.     It is not difficult to appreciate why dying declarations  are admitted in evidence at a trial for murder, as a striking  exception to the general rule against hearsay.  For example,  any sanction of the oath in the case of a living witness is a  thought to be balanced at least by the final conscience of the  dying man.  Nobody, it has been said, would wish to die with  a lie on his lips.  A dying declaration has got sanctity and a  person giving the dying declaration will be last to give  untruth as he stands before his creator.  There is a legal  maxim "Nemo Moriturous Praesumitur Mentire" meaning,  that a man will not meet his maker with lie in his mouth.   Woodroffe and Amir Ali, in their treatise on Evidence Act  state : "when a man is dying, the grave position in which he  is placed is held by law to be a sufficient ground for his  veracity and therefore the tests of oath and cross- examination are dispensed with." 20.     The court has to consider each case in the  circumstances of the case.  What value should be given to a  dying declaration is left to court, which on assessment of the  circumstances and the evidence and materials on record, will  come to a conclusion about the truth or otherwise of the

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version, be it written, oral, verbal or by sign or by gestures.   It is also a settled principle of law that  dying declaration is a  substantive evidence  and an order of conviction can be  safely recorded on the basis of dying declaration provided  the court is fully satisfied that the dying declaration made by  the deceased was voluntary and reliable and the author  recorded the dying declaration as stated by the deceased.   This court laid down the principle that for relying upon the  dying declaration the court must be conscious that the dying  declaration was voluntary and further it was recorded  correctly and above all the maker was in a fit condition -  mentally and physically - to make such statement.  21.     In   Smt. Paniben vs. State of Gujarat , this court  while stating that a dying declaration is entitled to great  weight however cautioned to note that the accused has no  power to cross-examination. "Such a power is essential for eliciting the truth as  an obligation of oath could be. This is the reason  the Court also insists that the dying declaration  should be of such a nature as to inspire full  confidence of the Court in its correctness. The  Court has to be on guard that the statement of  deceased was not as a result of either tutoring,  prompting or a product of imagination. The Court  must be further satisfied that the deceased was in  a fit state of mind after a clear opportunity to  observe and identify the assailants. Once the  Court is satisfied that the declaration was true and  voluntary, undoubtedly, it can base its conviction  without any further corroboration. It cannot be  laid down as an absolute rule of law that the dying  declaration cannot form the sole basis of  conviction unless it is corroborated. The rule  requiring corroboration is merely a rule of  prudence. this Court has laid down in several  judgments the principles governing dying  declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence  that dying declaration cannot be acted upon  without corroboration (Munnu Raja v. State of  M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376;  (1976) 2 SCR 764. (ii) If the Court is satisfied that the dying  declaration is true and voluntary it can base  conviction on it, without corroboration. (State of  U.P. v. Ram Sagar Yadav) (1985) 1 SCC 552:  1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati  Devi v. State of Bihar (1983) 1 SCC 211: 1983  SCC (Cri) 169: AIR 1983 SC 164. (iii) This Court has to scrutinise the dying  declaration carefully and must ensure that the  declaration is not the result of tutoring, prompting  or imagination. The deceased had opportunity to  observe and identify the assailants and was in a fit  state to make the declaration. (K. Ramchandra  Reddy v. Public Prosecutor) (1976) 3 SCC 618:  1976 SCC (Cri) 473:AIR 1976 SC 1994. (iv) Where dying declaration is suspicious it should  not be acted upon without corroborative evidence.  (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264  : 1974 SCC (Cri) 426. (v) Where the deceased was unconscious and  could never make any dying declaration the  evidence with regard to it is to be rejected. (Kake  Singh v. State of M.P.) 1981 Supp. SCC 25 : 1981

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SCC (Cri.) 645 : AIR 1982 SC 1021. (vi) A dying declaration which suffers from  infirmity cannot form the basis of conviction. (Ram  Manorath v. State of U.P.) (1981) 2 SCC 654 :  1981 SCC (Cri) 581. (vii) Merely because a dying declaration does not  contain the details as to the occurrence, it is not  to be rejected. (State of Maharashtra v.  Krishnamurti Laxmipati Naidu) 1980 Supp. SCC  455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617. (viii) Equally, merely because it is a brief  statement, it is not be discarded. On the contrary,  the shortness of the statement itself guarantees  truth. (Surajdeo Oza v. State of Bihar) 1980 Supp.  SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC  1505. (ix) Normally the court in order to satisfy whether  deceased was in a fit mental condition to make  the dying declaration look up to the medical  opinion. But where the eyewitness has said that  the deceased was in a fit and conscious state to  make this dying declaration, the medical opinion  cannot prevail. (Nanahau Ram and Anr. v. State of  M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 :  AIR 1988 SC 912.   (x) Where the prosecution version differs from the  version as given in the dying declaration, the said  declaration cannot be acted upon. (State of U.P. v.  Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri)  585 : AIR 1989 SC 1519."     22.     In K. Ramachandra Reddy and another vs. The  Public Prosecutor , the court having noticed the evidence  of P.W.20 therein who conducted the post-mortem  that  there were as many as 48 injuries on the person of the  deceased  out of which there were 28 incised wounds on the  various parts of the body including  quite a few gaping  incised injuries came to the conclusion that in view of those  serious injuries it was difficult to believe that the deceased  would have been in a fit state of mind to make a dying  declaration.  It was also a case where the Magistrate did not  put a direct question to the injured whether he was capable  mentally to make any statement.  In the circumstances this  court came to the conclusion that the Magistrate committed  a serious irregularity in "not putting a direct question to the  injured whether he was capable mentally to make any  statement."  It has been observed that even though the  deceased might have been conscious in the strict sense of  the term, "there must be reliable evidence to show, in view  of his intense suffering and serious injuries, that he was in a  fit state of mind to make statement regarding the  occurrence."  The certificate issued by the doctor that the  deceased was in a fit state of mind to make statement by  itself would not be sufficient to dispel the doubts created by  the circumstances and particularly the omission by the  Magistrate in not putting a direct question to the deceased  regarding the mental condition of the injured. 23.     In the case in hand before the actual recording of   Ex.P-8 \026 dying declaration, the Magistrate (P.W.7) did not   seek and obtain any opinion and a certificate or  endorsement from the duty doctor as to the physical and  mental condition of the declarant  to give statement.  The  Magistrate did not put any question as to whether the  declarant was making a voluntary statement and whether he  was in a fit condition to make the statement and whether  any sedatives had been administered.

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24.     In Padman Meher and anr. vs. State of Orissa   relying upon the evidence of doctor  expressing  the opinion  that after receiving the injury the victim would not be able  to talk and the injury would have caused great shock and  part of the body could have been paralysed, this court came  to the conclusion that the nature of the injury was such that  whether  death was instantaneous or not, the shock would  have been such that the deceased would not have been in a  position to talk. 25.     In Darshan Singh alias Bhasuri and ors. Vs. State  of Punjab , relying on the evidence of the Medical Officer  who conducted the post-mortem examination on the body of  victim to the effect that the victim’s vital organs like  peritoneum, stomach and spleen were completely smashed  and that there were remote chances of his remaining  conscious after receipt of such injury, this court observed "it  is impossible to believe that he was in a fit state of mind and  body to make any kind of coherent or credible statement  relating to the circumstances which resulted in his death.   True, he was quite near his Creator, dangerously so indeed,  and we may accept that his mind was then free from failings  which afflict the generality of human beings, like involving  enemies in false charges.  But; was too ill to entertain any  thoughts, good or bad, and he could not possibly even in a  position to make any kind of intelligible statement." The  court accordingly refused to place any reliance on the dying  declaration and excluded the same from consideration. 26.     In Kanchy Komuramma vs. State of A.P. , this court  while considering the evidentiary value of a dying  declaration noted that the prosecution for reasons best  known to it did not examine the doctor who made the  endorsement on dying declaration certifying that "the  patient was in a fit state of mind to depose" and having  further noticed that no other witness was examined to prove  the certificate of the doctor held that the same creates a  doubt as to whether the patient was actually in a proper  mental condition to make a consciously truthful statement.  It was held :  "This infirmity renders it unsafe to rely on the  dying declaration.  As a matter of fact, the  failure of the prosecution to establish that the  deceased, before she made the dying  declaration, was in proper mental condition to  make the dying declaration detracts materially  from the reliability of the dying declaration  and it would not be safe to rely upon it.  That  the dying declaration has been recorded by  Judicial Magistrate, by itself is not a proof of  truthfulness of the dying declaration, which in  order to earn acceptability has still to pass the  test of scrutiny of the court.  There are certain  safeguards which must be observed by a  magistrate when requested to record a dying  declaration.  He must record the dying  declaration satisfying himself that the  declarant is in a proper mental state to make  the statement.  He must also obtain the  opinion of the doctor, if one is available, about  the fitness of the patient to make a statement  and the prosecution must prove that opinion  at the trial in the manner known to law."  

                                           (emphasis supplied)                 

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27.     We may now refer to the decisions upon which strong  reliance was placed by the learned counsel for the State in  support of her submissions that  the Dying Declaration  recorded by the Magistrate cannot be held to be unreliable  merely because the doctor who issued the certificate  regarding fitness has not been examined by the prosecution.  A three Judges Bench of this court in Koli Chunilal Savji  and anr. Vs. State of Gujarat  while referring to the  judgment this court in Maniram vs State of M.P. , in which  this court held that when the declarant was in the hospital  itself, it was the duty of the person  recording the dying  declaration to do so in the presence of the doctor and after  being duly certified by the doctor that the declarant was  conscious and in his senses and was in a fit condition to  make the declaration observed that the said requirements  "are of merely rule of prudence and the ultimate test is  whether the dying declaration can be held to be a truthful  one and voluntarily given."  This court took the view that  non-examination of the doctor and the doctor  not making  any endorsement on the dying declaration itself is no ground  to exclude the dying declaration from consideration.  This  observation is to be understood in the factual background  and the circumstances in that case in which the Magistrate  who recorded the dying declaration, in his evidence  categorically stated that the doctor introduced the victim  and when she asked the doctor about the condition of the  victim, the said doctor categorically stated that the victim  was in a conscious condition.  The doctor made an  endorsement on the Police yadi indicating that victim was  fully conscious.  It was a case where the doctor certified  about the condition of the victim before the learned  Magistrate undertook to record the dying declaration.  That  apart there were two dying declarations corroborating each  other and there was no inconsistency in those two dying  declarations made. 28.     In Laxman  vs. State of Maharashtra ,  a  Constitution Bench of this court held :         "The court, however, has always to be  on guard to see that the statement of  the deceased was not as a result of  either tutoring or promoting or a  product of imagination. The court also  must further decide that the deceased  was in a fit state of mind and had the  opportunity to observe and identify  the assailant. Normally, therefore, the  court in order to satisfy whether the  deceased was in a fit mental condition  to make the dying declaration looks up  to the medical opinion. But where the  eyewitnesses state that the deceased  was in a fit and conscious state to  make the declaration, the medical  opinion will not prevail, nor can it be  said that since there is no certification  of the doctor as to the fitness of the  mind of the declarant, the dying  declaration is not acceptable. A dying  declaration can be oral or in writing  and any adequate method of  communication whether by words or  by signs or otherwise will suffice  provided the indication is positive and  definite. In most cases, however, such  statements are made orally before

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death ensues and is reduced to writing  by someone like a magistrate or a  doctor or a police officer. When it is  recorded, no oath is necessary nor is  the presence of a magistrate   absolutely necessary, although to  assure authenticity it is usual to call a  magistrate, if available for recording  the statement of a man about to die.  There is no requirement of law that a  dying declaration must necessarily be  made to a magistrate and when such  statement is recorded by a magistrate  there is no specified statutory form for  such recording. Consequently, what  evidential value or weight has to be  attached to such statement  necessarily depends on the facts and  circumstances of each particular case.  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."                                                    [Emphasis supplied]  

29.     The Constitution Bench in its authoritative  pronouncement declared that there is no requirement of law  that dying declaration must necessarily contain a  certification by the doctor that the patient was in a fit state  of mind especially when a dying declaration was recorded by  a Magistrate.  It is the testimony of the Magistrate that the  declarant was fit to make the statement gains the  importance and reliance can be placed upon declaration  even in the absence of the doctor provided the court  ultimately holds the same to be voluntary and truthful.  The  judgment does not lay down a proposition that medical  evidence, even if available on record, as also the other  attending circumstances should altogether be ignored and  kept out of consideration to assess the evidentiary value of a  dying declaration whenever it is recorded by a Magistrate.   The Constitution Bench resolved the difference of opinion  between the decisions expressed by the two Benches of  three learned Judges in Paparambaka Rosamma and ors.  Vs. State of A.P.  and Koli Chunilal Savji and anr. Vs.  State of Gujarat (Supra) and accordingly held that there is  no requirement of law that there should be always a medical  certification that the injured was in a fit state of mind at the  time of making  a declaration and such certification by the  doctor is  essentially a  rule of caution and even in the  absence of such a certification the voluntary and truthful  nature of the declaration can be established otherwise. 30.     This court in Shanmugam alias Kulandaivelu vs.  State of Tamil Nadu  held the proposition laid down in

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Paparambaka Rosamma vs. State of A.P. that "in the  absence of medical certification that the injured was in a fit  state of mind at the time of making the declaration, it would  be very much risky to accept subject to the satisfaction of a  Magistrate" is no longer good law in view of the larger bench  decision in Laxman vs. State of Maharashtra.  It is further  held the mere fact that the doctor, in whose presence dying  declaration was recorded, was not examined does not affect  the evidentiary value to be attached to the dying  declaration. Neither of the decisions held that the medical  evidence, if any, is available on record and the attending  circumstances altogether be ignored  merely because dying  declaration has been recorded by a Judicial Magistrate. PECULIAR FEATURES OF THIS CASE :  31.     In the light of the stated legal principles we now  proceed to discuss the peculiar and striking features found in  the case in hand.  There are two dying declarations, one  recorded by Police Officer \026 P.W.9 in Ex.P-10 and another by  the Magistrate \026 P.W.7 in Ex.P-8.  The incident of attack on  the deceased is alleged to have taken place at about 5.00  p.m. on 05.01.1998.  The first dying declaration in Ex.P.10  has been recorded at 6.00 p.m. at Casualty, Guntur  Hospital, Guntur.  The victim stated that on 05.01.1998  in  the afternoon he went to see a  cinema in the cinema hall  situated at Gorantala; "having witnessed the cinema came  out.  Sivayya, the younger brother of Ankamma, resident of  Koritepadu and Rajka by caste and four others came upon  me and all of them cut my face and head with hunting  sickles.  The remaining four persons cut me with hunting  sickles indiscriminately on my legs and hands."  He affixed  his right thumb impression on the declaration.  There is a  certificate at the end of the dying declaration issued by  Casualty Medical Officer to the effect that "Patient conscious  coherent, fit mind to give statement."  In the second dying  declaration recorded by Judicial Magistrate of First Class \026  P.W.7 in Ex.P\0268 the victim stated that he went to the  cinema hall at Gorantala in the evening at 5.00 p.m. with an  intention to see cinema.  There Nallapati Sivayya (appellant)  and other three persons, whom he cannot identify, in all four  in number came and cut him indiscriminately with hunting  sickles; and though number of people were present at the  place of incident, none came to his rescue.  He also stated  that he was one of the accused in Ankamma’s murder case  and for that reason Sivayya who is known to be his younger  brother developed grudge and cut him with  sickle along  with three persons.  The recording of this second dying  declaration  commenced at 6.35 p.m. on 05.01.1998 and  completed by 7.10 p.m.  The Judicial First Class Magistrate  made an endorsement to the effect that he obtained the  great toe impression of left foot of the victim as his both  hands and his right foot were bleeding with multiple cut  injuries and blood was oozing from them.  The victim did not  state anything about the dying declaration recorded by  P.W.9 in Ex.P-10.  In Ex.P-10 recorded by the police officer,  he implicated the appellant and four others and stated that  appellant has cut his face and head with hunting sickle and  the other four cut his legs and hands with hunting sickles.   In the second Dying Declaration (Ex.P-8) he implicated the  appellant and only three other persons.  He made omnibus  allegations against the appellant and three other persons  and not four other persons as stated in the first Dying  Declaration.  It is strange that at 6.35 p.m. he was able to  affix his right thumb impression but could not do so at 7.10  p.m when it is clear that blood was oozing on account of  multiple cut injuries from his both hands and right foot.  In

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the first dying declaration he allegedly stated that he went  to see cinema in the noon and came out of the theatre  around 5.00 O’clock but in the second Dying Declaration he  allegedly stated that he went to see the cinema at around  5.00 p.m. in the evening and at that time the incident had  taken place.  32.      In the circumstances can it be said that the victim was  conscious and coherent and in a fit condition to give the  statement?  This aspect of the matter is  required to be  considered in the background of victim receiving as many as  63 injuries on his body including injuries 1 to 13 and 19 on  the parietal and occipital regions on account of which the  victim could have gone into coma.  The Professor of Forensic  Medicine & Medical Officer who conducted the post-mortem,  examined as P.W.11, is an important witness whose  evidence has been altogether ignored. He found diffused  subarchanoid haemmorrhage present all over the brain  which normally results in patient going into coma.  He also  expressed his opinion that the deceased must have died  within one or two hours after receiving the injuries. Can we  ignore this vital piece of evidence ? Do we have to accept  that the victim having received 63 multiple injuries went on  speaking coherently from 6.00 p.m. onwards till 7.10 p.m.,  for about one hour and ten minutes?  There is no evidence  and details of any treatment administered to the victim.  Dr.  B.G. Sugunavathi, Casulalty Doctor, first noticed the victim  dead at 9.30 p.m. on 05.01.1998 itself.  There is no positive  evidence as to when the victim died even though he was  admitted into the hospital with multiple injuries.  These  cumulative factors and surrounding circumstances make it  impossible to rely upon the dying declarations that were  recorded in Ex.P-10 and Ex.P-8.  These are the  circumstances which compel us not to  ignore the evidence  of P.W.10 -  Doctor and  Professor  of Forensic Medicine.  It  is not a question of choosing between the eye-witness  account as regards the condition of the victim to make a  statement on the one hand and the evidence of the  Professor and Doctor of Forensic Medicine .  The conflict and  inconsistency between the two dying declarations and the  evidence of the Forensic Expert which remained  unimpeached  raises a very great suspicion in the mind of  the court.  33.      It is the duty of the prosecution to establish the charge  against the accused beyond reasonable doubt.  The benefit  of doubt must always go in favour of the accused.  It is true  that dying declaration is a substantive piece of evidence to  be relied on provided it is proved that the same was  voluntary and truthful and the victim was in a fit state of  mind.  The evidence of Professor of Forensic Medicine casts  considerable doubt as regards the condition of the deceased  to make a voluntary and  truthful  statement.  It is for that  reason  non-examination of Dr. T. Narasimharao, Casualty  Medical Officer, who was said to have been present at the  time of recording of both the Dying Declarations attains  some significance.  It is not because it is the requirement in  law that the doctor who certified about the condition of the  victim to make a Dying Declaration is required to be  examined in every case.  But it was the obligation of the  prosecution to lead corroborative evidence available in the  peculiar circumstances of the case.  34. This court in Sabbita Satyavathi vs. Bandala  Srinivasarao and ors   refused to place reliance upon the  dying declaration of the victim recorded by the Assistant  Civil Surgeon at Government Hospital where the deceased  was brought in  injured condition.  The court came to the

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conclusion that having regard to the injuries sustained by  the deceased he would not have been in a position to make  any statement even if he was alive when brought to the  hospital.  He must have become unconscious soon after  suffering the injuries and there was no question of his either  making a statement before P.W.1 or before the Medical  Officer. Medical Officer admitted that the death of the  deceased was due to injuries to vital organs such as heart  and lung.  This court having regard to nature of injuries,  entertained a serious doubt as to whether the injured could  have given two dying declarations as alleged by the  prosecution, one at about 7.00 p.m. and another at about  8.45 \026 9.00 p.m.  The court relied upon the medical  evidence on record inasmuch as doctor herself stated that if  such an injury is caused to heart the injured would become  unconscious immediately.  There was, therefore, no question  of his making a dying declaration to anyone thereafter.

35.     In State of Haryana and ors.  Vs.  Ram Singh and  anr.  this court while considering the significance of the  evidence of the doctor observed : "While it is true that the post-mortem report  by itself is not a substantive piece of evidence,  but the evidence of the doctor conducting the  post-mortem can by no means be ascribed to  be insignificant.  The significance  of the  evidence of the doctor lies vis-‘-vis the  injuries appearing on the body of the  deceased person and likely use of the weapon  therefore and it would then be the  prosecutor’s duty and obligation to have the  corroborative evidence available on record  from the other prosecution witnesses."     

36.     In Kailash vs. State of M.P.  this court while  adverting to the question as to the course open to  the courts where oral evidence is to be found  inconsistent with the medical evidence observed : "When, however, oral evidence is found to be  inconsistent with the medical evidence, the  question of relying upon one or the other  would depend upon the facts and  circumstances of each case.  No hard-and-fast  rule can be laid down therefor."   

Can the medical evidence be altogether ignored ?

37.     This court in State of Rajasthan vs. Bhanwar  Singh            observed :

"Though ocular evidence has to be given  importance over medical evidence, where the  medical evidence totally improbabilises the  ocular version that can be taken to be a factor  to affect credibility of the prosecution  version."

38.     In our considered opinion, the  medical evidence and  surrounding circumstances  altogether cannot be ignored  and kept out of consideration by placing exclusive reliance  upon the testimony of person recording a dying declaration.

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39.     The Dying Declaration must inspire confidence so as to  make it safe to act upon.  Whether it is safe to act upon a  Dying Declaration depends upon not only the testimony of  the person recording Dying Declaration \026 be it even a  Magistrate but also all the material available on record and  the circumstances including the medical evidence.  The  evidence and the material available on record must be  properly weighed in each case to arrive at proper conclusion.   The court must satisfy to itself that the person making the  Dying Declaration was conscious and fit to make statement  for which purposes not only the evidence of persons  recording dying declaration but also cumulative effect of the  other evidence including the medical evidence and the  circumstances must be taken into consideration. CONCLUSION : 40.     It is unsafe to record conviction on the basis of a dying  declaration alone  in cases where suspicion is raised as  regards the correctness of the dying declaration.  In such  cases, the court may have to look for some corroborative  evidence by treating dying declaration only as a piece of  evidence.  41.     In the present case it is difficult to rest the conviction  solely based on the dying declarations.  The deceased  sustained as many as 63 injuries.  Having regard to the  nature of injuries the deceased may not have been in a  position to make any statement before P.W. or before P.W.7.   P.W.7- the Inspector admitted that the condition of the  deceased even at 5.30 p.m. was very precarious.  P.W.10 \026  Professor and Doctor of Forensic Medicine admitted injuries  1 to 13 and 19 could have resulted in the deceased going  into coma.    42.     We are not satisfied that the prosecution has proved its  case against the appellant beyond reasonable doubt.   Appellant is entitled to the benefit of doubt.  We, therefore,  allow this appeal and acquit the appellant of the charges  leveled against him.  The appellant is therefore directed to  be released forthwith provided he is not required in  connection with any other case or cases.