SEC 32(2) IEA


The case, in brief, is that on 23.07.1988 at 9.15 pm informant Prem Kumar lodged a first information report before Police Station Kotwali, Ranchi to the effect that while the informant and his maternal uncle Mahesh Pandey were at their residence when their neighbour Sudhir Ganjhu came on a scooter and called the deceased. The deceased went to a culvert near the said Cinema and gossiped. Informant also came out of the house and went near Betal Gumti. Meanwhile, appellant arrived at the site on Hero Honda motorcycle driven by Deepak Deb. Stopping the motorcycle the appellant fired two shots at the Mahesh Pandey due to which Mahesh Pandey fell down and assailant fled towards Court on motorcycle. Mahesh Pandey was taken to R.M.C.H. Ranchi for treatment and at 11 p.m. the Judicial Magistrate, Ranchi recorded his dying declaration in the presence of doctor. Mahesh Pandey died and postmortem was conducted by PW.3-Dr. Ajit Kumar Choudhary on 25.07.1988. The appellant faced the trial and convicted and sentenced the appellant under Section 302 IPC and Section 27 of the Arms Act.

The learned counsel appearing for the appellant submits that the conviction is solely based on the dying declaration of the deceased which finds no corroboration. He further submits that the doctor’s certificate was not there at the time of recording the dying declaration hence without there being certificate of doctor the dying declaration could not have beenrelied. He further submits that PW.1, the mother of the deceased as well as PW.2, the sister of the deceased have not supported the prosecution case due to which the Court ought to have been very careful in considering the dying declaration. He further submits that PW.6-IO has stated that injured was not in a position to give any statement hence the dying declaration was not to be relied by Court for convicting the appellant.

Learned counsel appearing for the State refuting the submissions of learned counsel for the appellant contends that even the statement of mother has proved the incident of firing. She has also signed the dying declaration which proves her presence in the hospital. Learned counsel further submits that Courts did not commit any error in relying on the dying declaration for convicting the appellant. It is submitted that it is well settled that doctor’s certificate is not mandatory for relying on the dying declaration and Court can consider and rely on a dying declaration even if there is no doctor’s certificate.

SC held that The dying declaration of the deceased was recorded at 11 pm on the same day. In the dying declaration the deceased had categorically stated that appellant has fired on him at 9 pm. He also stated that his mother was present. Further he stated that appellant had fired four shots. The dying declaration also contains the L.T.I. of Rampati, the mother of deceased as well as signature of Dr. D.P. Bhandari. The Judicial Magistrate who recorded the statement was examined by the prosecution as PW.5. In his statement, he stated that dying declaration was recorded by him in presence of Dr. D.P. Bhandari of R.M.C.H., Ranchi and Most. Rampati. He further stated that Dr. D.P. Bhandari has also put his signatures in his presence as well as Most. Rampati. In his cross- examination although he stated that no such certificate was given by doctor that Mahesh Pandey was in a fit state of mind to give statement but he stated that doctor had orally told him that Mahesh Pandey would be able to give statement.

The court held that there was no reason to take a contrary view in this case as that held in Laxman vs. State of Maharashtra (2002) 6 SCC 710 where the Constitution Bench clearly held that mere absence of
doctor’s certification as to the fitness of the declarant’s state of mind would not ipso facto render the dying declaration unacceptable. It was further held that evidentiary value of such a declaration would depend on the facts and circumstances of the particular case. In the present case Judicial Magistrate, who has appeared in the witness box, has proved the dying declaration and looking to the facts and circumstances especially the presence of doctor who had signed the dying declaration and who had told the Judicial Magistrate that the injured was in a fit condition to give statement.

In view of the above the appeal was dismissed.

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