Whether Doctor's Certification mandatory for recording Dying Declarations? SC answers
[Read Judgment] Meera Emmanuel
April 30 2019
The Supreme Court on Tuesday had occasion to make certain pertinent observations regarding dying declarations as proof of conviction.
A three-Judge Bench of Justices NV Ramana, MM Shantanagouder and S Abdul Nazeer noted that reliable dying declarations can be made the sole basis for conviction. Further, if the dying declaration in question is otherwise proved to be reliable, there is no need to insist on certification of the same by a doctor.
To this end, the Bench observed that the certification of dying declarations by doctors is only a rule of prudence, which is not mandatory if the declaration in question is otherwise reliable. As noted in their judgment,
“There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable.
In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case.
The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to crossexamination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court.”
The appellant before the Court had been accused of dousing her aunt with kerosene and burning her to death in 2001. The case of the prosecution primarily rested on a dying declaration purported to have been made by the victim on the same day, in the presence of family members and a Naib Tehsildar-cum-Executive Magistrate.
As per the prosecution’s narration, the Tehsildar had been called to the hospital to record the victim’s dying declaration on a request made by the police. The statement was recorded on a Sunday when there were no doctors available to certify the dying declaration, it was submitted. The dying declaration so recorded accused the appellant-niece of having committed the murder.
Before the trial court, the victim’s family members also stated that the appellant had committed the crime. The trial court, however, concluded that the offence had not been proved sufficiently and therefore acquitted the appellant. On appeal, the High Court reversed the acquittal and convicted the appellant.
On further appeal before the Supreme Court, the Bench concurred with the trial court’s acquittal, noting that,
“As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself.”
The Court concluded that the Tehsildar, in this case, did not satisfy himself at all about the fitness of the victim to make a statement.
“No verification or certification of the doctor regarding the fitness of the victim to make a statement can be found on the dying declaration either. In addition, absolutely no reasons are forthcoming either from the Investigating Officer (P.W. 12) or from the Naib Tehsildar-cum-Executive Magistrate (P.W. 1) as to why the original dying declaration was not produced before the Trial Court.”
Importance was attached to obtaining such verification given other circumstances throwing doubt upon the veracity of the recorded dying declaration. For one, the police had stated that they found the victim in a state of shock. At the hospital, she was found to have suffered 100% burn injuries. In view of the same, the Court opined that it should have been discerned whether the victim, in this case, was fit to make the dying declaration at all.
This apart, the Bench found that the victim’s family members appeared to have decided to accuse the appellant of the murder clearly as an afterthought. It was pointed out that none of the initial statements taken by the investigative authorities from these witnesses contained such an accusation. It was only during trial that the victim’s family members first accused the appellant of the murder.
Certain lacunae in the account given by the investigation officer were also noted by the Court, including a delay of around three hours in registering an FIR in the case.
In view of the same, the Supreme Court concluded that the trial court’s finding of acquittal was liable to be confirmed. It held,
“The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the socalled dying declaration (Exh.P2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion…
… Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved.”
Therefore, the Bench set aside the High Court judgment and ordered the release of the appellant.
Read the Judgment:
https://barandbench.com/doctor-certification-dying-declarations-supreme-court/
[Read Judgment] Meera Emmanuel
April 30 2019
The Supreme Court on Tuesday had occasion to make certain pertinent observations regarding dying declarations as proof of conviction.
A three-Judge Bench of Justices NV Ramana, MM Shantanagouder and S Abdul Nazeer noted that reliable dying declarations can be made the sole basis for conviction. Further, if the dying declaration in question is otherwise proved to be reliable, there is no need to insist on certification of the same by a doctor.
To this end, the Bench observed that the certification of dying declarations by doctors is only a rule of prudence, which is not mandatory if the declaration in question is otherwise reliable. As noted in their judgment,
“There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable.
In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case.
The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to crossexamination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court.”
The appellant before the Court had been accused of dousing her aunt with kerosene and burning her to death in 2001. The case of the prosecution primarily rested on a dying declaration purported to have been made by the victim on the same day, in the presence of family members and a Naib Tehsildar-cum-Executive Magistrate.
As per the prosecution’s narration, the Tehsildar had been called to the hospital to record the victim’s dying declaration on a request made by the police. The statement was recorded on a Sunday when there were no doctors available to certify the dying declaration, it was submitted. The dying declaration so recorded accused the appellant-niece of having committed the murder.
Before the trial court, the victim’s family members also stated that the appellant had committed the crime. The trial court, however, concluded that the offence had not been proved sufficiently and therefore acquitted the appellant. On appeal, the High Court reversed the acquittal and convicted the appellant.
On further appeal before the Supreme Court, the Bench concurred with the trial court’s acquittal, noting that,
“As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself.”
The Court concluded that the Tehsildar, in this case, did not satisfy himself at all about the fitness of the victim to make a statement.
“No verification or certification of the doctor regarding the fitness of the victim to make a statement can be found on the dying declaration either. In addition, absolutely no reasons are forthcoming either from the Investigating Officer (P.W. 12) or from the Naib Tehsildar-cum-Executive Magistrate (P.W. 1) as to why the original dying declaration was not produced before the Trial Court.”
Importance was attached to obtaining such verification given other circumstances throwing doubt upon the veracity of the recorded dying declaration. For one, the police had stated that they found the victim in a state of shock. At the hospital, she was found to have suffered 100% burn injuries. In view of the same, the Court opined that it should have been discerned whether the victim, in this case, was fit to make the dying declaration at all.
This apart, the Bench found that the victim’s family members appeared to have decided to accuse the appellant of the murder clearly as an afterthought. It was pointed out that none of the initial statements taken by the investigative authorities from these witnesses contained such an accusation. It was only during trial that the victim’s family members first accused the appellant of the murder.
Certain lacunae in the account given by the investigation officer were also noted by the Court, including a delay of around three hours in registering an FIR in the case.
In view of the same, the Supreme Court concluded that the trial court’s finding of acquittal was liable to be confirmed. It held,
“The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the socalled dying declaration (Exh.P2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion…
… Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved.”
Therefore, the Bench set aside the High Court judgment and ordered the release of the appellant.
Read the Judgment:
https://barandbench.com/doctor-certification-dying-declarations-supreme-court/
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