Santosh Kumar Vs. State of U.P. - (High Court of Allahabad) (02 Nov 2018)

In absence of fitness certificate referring mental fitness, no reliance can be placed upon dying declaration

MANU/UP/4041/2018

Criminal

The Appellant has filed present appeal from his conviction and sentence passed by Additional Session's Judge convicting the Appellant under Section 302 Indian Penal Code, 1860 (IPC) and awarding sentence of imprisonment for life with fine of Rs. 2,000, along with default stipulation. Issue raised in present case is whether the conviction of the Appellant solely basing upon the dying declaration is sustainable.

Constitution Bench of Supreme Court in Laxman v. State of Maharashtra, has held 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. Further, in Paparambaka Rosamma Vs. State of A.P., it has been held that, certificate of fitness given by the doctor should specifically refer mental fitness. In the absence of it, no reliance can be placed upon dying declaration.

The dead body was in pugilistic attitude as such heat was so intense that her brain might have been cooked. Severe damage at least to the extent of blistering of the tongue and upper respiratory tract might have come. Thus, dying declaration is highly doubtful and no reliance can be placed on it. There is no other evidence on record as prosecution witnesses have been declared hostile by the prosecution itself. The conviction of the Appellant solely basing upon the dying declaration is not sufficient. The conviction and sentence of the Appellant is set aside. Appeal allowed

Relevant : Laxman v. State of Maharashtra, MANU/SC/0707/2002: (2002) 6 SCC 710, Paparambaka Rosamma Vs. State of A.P., MANU/SC/0558/1999: (1999) 7 SCC 695

Tags : CONVICTION LEGALITY DYING DECLARATION