STATE OF KARNATAKA Vs. ASLAM ALIAS ASLAM PASHA

JUDGEMENT

(1.) WE have heard the learned State Public Prosecutor in support of this appeal.

(2.) THIS is another gruesome case of alleged wife burning and the statement of the deceased to which there is a reference is supposed to have been recorded by the doctor who says so in terms in his evidence. After hearing the learned State Public Prosecutor at some length on the last occasion, we have requested that the records be called for as these are serious cases and the Court had to be extremely cautious in the matter of verifying the correct facts. On a perusal of the record, we find that the statement had not been recorded by the doctor but that it had been recorded by the Police Constable 7322, who again has not been examined. There is some thumb impression on the statement and the statement contains a certificate from the doctor to the effect that it was recorded before him. This statement or certificate is wholly insufficient as it does not meet with the requirement of law and we also take note of the fact that the doctor has wrongly contended that it was recorded by him. In totality, because of the situation recounted by us above, we find that it is impossible to place reliance on this document or to treat it as a valid dying declaration. In the absence of this evidence, the prosecution case would necessarily have to fail as the remaining witnesses have turned hostile. Since it has repeatedly come to our notice that situations do occur where the requisite certificate regarding fitness of the patient is either not recorded on the statement or that the type of certificate as the law requires and in the form in which the law requires it, is not forthcoming on the dying declaration itself, we consider it necessary to bring this fact to the notice of the authorities and issue certain guidelines in the confidence that the requirements of law will be properly observed in cases hereinafter. The additional reason for it is because this class of cases invariably rests very heavily on the dying declaration and it is therefore equally necessary to ensure that there are no defects or errors committed in the course of the recording of the dying declaration. It is well settled law that in cases of this category where a conviction is possible solely on the basis of a totally reliable dying declaration that it must pass the absolute test of scrutiny. It is insufficient for the doctor or the other authorities to depose in the witness-box with regard to the soundness of the mental and physical condition of the deponent for a variety of reasons and it has been laid down time and again by this Court that the certificate must be contemporaneous and that it must be superscribed on the dying declaration itself. Despite this position, it is unfortunate that in the present case, the dying declaration does not contain the requisite certificate.

(3.) THE learned State Public Prosecutor vehemently submitted that an exception can be made provided the Court is fully satisfied from the oral evidence and the rest of the record that the deponent was in a sound, physical and mental condition good enough to make a cogent and true dying declaration and that where the rest of the record is generally satisfactory, the Court should not outright reject the dying declaration on thisground itself. We do not propose to recount the very sound reasons why the Court insists on the Certificate being superscribed on the dying declaration itself, the most important of them being that it represents to the Court some guarantee of the fact that at the relevant time, the doctor incharge of the case has applied his mind and has certified about the capacity of the patient to make a correct dying declaration. This requirement is well-known and despite this, the present one is not the only case in which we find this error having been committed. It is something that is fatal to the prosecution and therefore, we consider it equally necessary to once again reiterate that the concerned department must specifically bring it to the notice of all the public hospitals in the State and the doctors manning them that in each and every case where a dying declaration is required to be recorded that it must be done at the earliest point of time and secondly, that the doctor must correctly and carefully evaluate the physical and mental condition of the patient and certify on the dying declaration itself, if in the opinion of the doctor the patient is in a sound condition to make the statement. The evaluation will include the elementary factors such as consciousness of the patient and mental condition of the patient having regard to the pain, shock etc. , as also the condition of the patient in the light of whatever drugs or pain killers that must have been administered. The Certificate is not to be mechanically issued but must be done on the basis of a careful and thorough evaluation. This is necessary because a dying declaration is a very strong piece of evidence and a hundred percent valid dying declaration could form the basis of a conviction whereas on the other hand the accused will have no opportunity to test its correctness as the deponent has already died. We desire that hereinafter steps be taken to ensure that no laches or errors take place even in a single case and if it does, for reasons of negligence or dishonesty, stringent disciplinary action will follow. The learned State Public Prosecutor to forward a copy of this order to the Director of Health Services and the Secretary to the Government, Department of Health with a request that the guidelines be communicated in writing to all Govt. hospitals and doctors in the State in order to ensure that such errors do not take place in future.