SHER SINGH & ANR. versus STATE OF PUNJAB

Citation: [2008] 2 S.C.R. 959 · Decided: 15-02-2008 · Supreme Court of India · Bench: P.P. NAOLEKAR · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2008] 2 S.C.R. 959 
SHER SINGH & ANR. 
A 
II. 
STATE OF PUNJAB 
(Criminal Appeal No. 646 of 2006) 
FEBRUARY 15, 2008 
B 
[P.P. NAOLEKAR AND MARKANDEY KATJU, JJ.] 
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Evidence Act, 1872: s. 32 -
Dying declaration -
Admissibility of- Duty of court regarding - Certificate of doctor 
as to fit state of mind - Requirement of- Held: Court to ensure c 
that statement was not result of tutoring and also to ascertain 
from evidence that deceased was in fit state of mind - Where 
it is proved by testimony of Magistrate that declarant was fit to 
make statement without doctor's opinion to that effect, it can 
be acted upon provided court ultimately holds the same to be D 
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voluntary and truthful- Certificate by doctor is essentially rule 
; 
of caution and, therefore, voluntary and truthful nature of 
statement can be established otherwise - On facts, fact that 
second dying declaration was contrary to first declaration would 
not make it untrue - Oral dying declaration made to uncle of E 
declarant consistent with subsequent declarations implicating 
accused persons stating about their involvement in 
commission of crime -
Therefore, accused were rightly 
1, 
convicted under s.302134 IPC on the basis of dying declaration 
made against them .:... Penal Code, 1860 - s. 302134. 
,.. 
F 
The prosecution case was on 18.7.1994 that the 
. accused persons who were ·husband, father-in-law, 
mother-in-law and sister-in-law poured kerosene oil on 
the deceased and burnt her which resulted in her death 
after three days in the hospital. Her first dying declaration G 
-:. .. -,... 
made before the A.S.I the same day was that the fire was 
accidental, and was caught while preparing tea. The uncle 
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of deceased PW-4 met the deceased the next day when 
she told him that she was burnt by the accused. On his 
959 
H 
960 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
A application to District Magistrate,· PW7 the Executive 
Magistrate was directed to record her statement and on 
20.7.1994, he recorded the statement. Two days later, S.I. 
also recorded her statement after taking doctor's opinion 
about her fit state of mind. Third day, she died. The 
B accused persons were convicted under s.302 r/w s.34 IPC 
which was upheld by High Court. Hence the present 
appeal. 
Dismissing the appeal, the Court 
c 
. HELD: 1. Acceptability of a dying declaration is 
greater because the declaration is made in extre'llity. 
When the party is at the verge of death, one rarely finds 
any motive to tell falsehood and it is for this reason that 
the requirements of oath and cross examination are 
0 dispensed with in case of a dying declaration~ Since the 
accused has no power of cross-examination, the court 
would insist that the dying declaration should be of such 
a nature as to inspire full confidence of the court in its . 
truthfulness and correctness. The court should ensure 
that the statement was not as a result of tutoring or 
E prompting or a product of imagination. It is for the court 
to ascertain from the evidence placed on record that the 
deceased was in a fit state of mind and had ample 
opportunity to observe and identify the culprit. Normally, 
the court places reliance on the medical evidence for 
F reaching the conclusion whether the person making a 
dying declaration was in a fit state of mind, but where the 
person recording the statement states that the deceased 
was in a fit and conscious. state, the medical opinion will 
not prevail, nor can it be said that since· there is no 
G certification of the doctor as to the fitness of mind of the 
declarant, the dying declaration is not acceptable. What 
is essential is that the person recording the dying 
declaration must be satisfied that the deceased was in a 
fit state of mind. Where it is proved by the testimony of 
H the Magistrate that the declarant was fit to make the 
I 
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SHER SINGH & ANR. v. STATE OF PUNJAB 
961 
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statement without there being the doctor's opinion to that A 
effect, it can be acted upon provided the court ultimately 
holds the same to be voluntary and truthful. A certificate 
by the doctor is essentially a rule of caution and, therefore, 
the voluntary and truthful nature of a statement can be 
established otherwise. [Para 14] [969-A, B, C, D, E, F] 
B 
_.\.._ 
2. The first dying declaration was recorded on 
18.7.1994 by ASI DW-1 The victim did not name any of the 
accused perso_ns and said that it was a case of an 
accident. However, in the statement before the

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