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(emphasis supplied)

27. We may now refer to the decisions upon which strong reliance was placed by the learned counsel for the State in support of her submissions that the Dying Declaration recorded by the Magistrate cannot be held to be unreliable merely because the doctor who issued the certificate regarding fitness has not been examined by the prosecution. A three Judges Bench of this court in Koli Chunilal Savji and anr. Vs. State of Gujarat while referring to the judgment this court in Maniram vs State of M.P. , in which this court held that when the declarant was in the hospital itself, it was the duty of the person recording the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration observed that the said requirements "are of merely rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given." This court took the view that non-examination of the doctor and the doctor not making any endorsement on the dying declaration itself is no ground to exclude the dying declaration from consideration. This observation is to be understood in the factual background and the circumstances in that case in which the Magistrate who recorded the dying declaration, in his evidence categorically stated that the doctor introduced the victim and when she asked the doctor about the condition of the victim, the said doctor categorically stated that the victim was in a conscious condition. The doctor made an endorsement on the Police yadi indicating that victim was fully conscious. It was a case where the doctor certified about the condition of the victim before the learned Magistrate undertook to record the dying declaration. That apart there were two dying declarations corroborating each other and there was no inconsistency in those two dying declarations made.

28. In Laxman vs. State of Maharashtra , a Constitution Bench of this court held :

"The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is 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. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

[Emphasis supplied]

29. The Constitution Bench in its authoritative pronouncement declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make the statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of consideration to assess the evidentiary value of a dying declaration whenever it is recorded by a Magistrate. The Constitution Bench resolved the difference of opinion between the decisions expressed by the two Benches of three learned Judges in Paparambaka Rosamma and ors. Vs. State of A.P. and Koli Chunilal Savji and anr. Vs. State of Gujarat (Supra) and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature of the declaration can be established otherwise.

32. In the circumstances can it be said that the victim was conscious and coherent and in a fit condition to give the statement? This aspect of the matter is required to be considered in the background of victim receiving as many as 63 injuries on his body including injuries 1 to 13 and 19 on the parietal and occipital regions on account of which the victim could have gone into coma. The Professor of Forensic Medicine & Medical Officer who conducted the post-mortem, examined as P.W.11, is an important witness whose evidence has been altogether ignored. He found diffused subarchanoid haemmorrhage present all over the brain which normally results in patient going into coma. He also expressed his opinion that the deceased must have died within one or two hours after receiving the injuries. Can we ignore this vital piece of evidence ? Do we have to accept that the victim having received 63 multiple injuries went on speaking coherently from 6.00 p.m. onwards till 7.10 p.m., for about one hour and ten minutes? There is no evidence and details of any treatment administered to the victim. Dr. B.G. Sugunavathi, Casulalty Doctor, first noticed the victim dead at 9.30 p.m. on 05.01.1998 itself. There is no positive evidence as to when the victim died even though he was admitted into the hospital with multiple injuries. These cumulative factors and surrounding circumstances make it impossible to rely upon the dying declarations that were recorded in Ex.P-10 and Ex.P-8. These are the circumstances which compel us not to ignore the evidence of P.W.10 - Doctor and Professor of Forensic Medicine. It is not a question of choosing between the eye-witness account as regards the condition of the victim to make a statement on the one hand and the evidence of the Professor and Doctor of Forensic Medicine . The conflict and inconsistency between the two dying declarations and the evidence of the Forensic Expert which remained unimpeached raises a very great suspicion in the mind of the court.