The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 395 of 1993 (Arising out of order dated 08.12.1993 passed by the learned Addl. Sessions Judge, Ganjam, Berhampur, in SC No.15/1993 (SC No.67/1993 G.D.C arising out of Chhatrapur P.S.Case No.189 of 1992.) ---------- Gorek Suba Rao …. Appellant Mr. M. Mishra, Advocate State of Odisha -versus- …. Respondent Mr. S. Patra, ASC P R E S E N T: HONOURALE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment : 12.02.2024 By the Bench : Heard learned counsel for the Petitioner and the State. 2. The legality and the correctness of the Judgment and order dated 08.12.1993 passed by the learned 2nd Addl. Sessions Judge, Ganjam, Berhampur in S.C. No.15 of 1993 convicting the Appellant under Section 304-Part-II of the Indian Penal Code (herein after in short called the “IPC”) and sentenced them to undergo R.I. for five years has been called in question. 3. As reveals three Appellants faced the trial and found convicted as above. During the pendency of the Appeal, out of the three Appellants, CRA No.395 of 1993 Page 1 of 16 // 2 // two Appellants namely, Gorek Chinaya and Gorek Achiamma expired and as such the Appeal stood abated against them vide order of this Court No.6 dated 27.03.2023 . The Appeal in the present, therefore, relates only in respect to the Appellant Gorek Suba Rao as reflected in the cause title. 4. The prosecution case as unfurled before the learned trial court is that on 29.07.1992 the accused G. Suba Rao and G. Ramudu (brother-in-law of the deceased) together brought fish from the sea and sold the same to B. Tariniamma for Rs.64/-. In the evening, the accused G. Chinaya, G. Rumudu and S. Nachaya (hereinafter called the “deceased”) went to collect the sale proceeds from B. Tariniamma. Thereafter, they consumed liquor worth Rs.4/- and the balance amount was distributed amongst G. Ramudu and accused G. Suba Rao and G. Chinaya at the rate of Rs.20/- each. Accused G. Suba Rao being the son of accused Chinaya, the latter took the share of the former. As there was no change, deceased took the fifty rupee note from Chinaya and went for a change. G. Ramudu left for his house when deceased returned with change he found accused G. Chinaya was standing near the drain in front his house. The deceased handed over him the change of Rs.45/-, at this the accused G. Chinaya got enraged and accused him of stealing of Rs.5/-. There was altercation. At this time accused G. Suba Rao and his mother G. Achiamma arrived there and they all dealt blows and kicks to S. Nachaya and trampled over his body. As S. Nachaya fell down, they pushed him into the drain. In course of the assault, G. Rajamma, sister of the deceased and wife of G. Ramudu and also S. Ashrama, the mother of the deceased arrived there hearing the hulla. On the intervention of Rajamma, she was also assaulted. S. Nachaya fell down flat and the accused persons left the spot and went to nearby their house. G. CRA No.395 of 1993 Page 2 of 16 // 3 // Rajamma and S. Asharama brought S. Nachaya to the house of Asharama. S. Nachaya complained of pain on his stomach and could not take anything. The matter was reported by Ashrama and Rajamma to the villagers, who thought the assault not to be serious and did not give any importance. The pain of S. Nachaya increased on the subsequent day. But as Asharama had no money, she could not shift him to hospital. However, as the pain increased further, on 31.07.1992, in the morning S. Nachaya was admitted to Chhatrapur Sub-divisional Hospital. His condition became serious and therefore the fact was reported to the doctor-In-Charge as well as the Inspector-In-Charge of Chhatrapur Police Station, who in turn directed the A.S.I. of Arjipalli outpost to proceed to the hospital. The Station Diary Entry No.517 was made and the A.S.I. proceeded to Sub-Divisional Hospital, Chhatrapur where G. Rajamma, the sister of the deceased narrated the matter as above stated, which was reduced to writing by the A.S.I. and the same having been
Facts
treated as FIR registered vide Chhatrapur P.S. Case No.189 of 1992 vide Ext.7/1 and the investigation commenced. 7. In course of the investigation, he examined the complainant, injured S. Nachaya, S. Achamma, the mother of the injured, issued injury requisition to the Medical Officer, Chhatrapur, Govt. Hospital for examination of the victim S. Nachaya. It was learnt by the I.O. from the treating doctor that the condition of the injured was serious so he left hospital and went to Chhatrapur Police Station, discussed the matter with the IIC and a requisition was made to the Executive Magistrate Chhatrapur for recording the dying declaration of the injured which was recorded vide Ext.1. The requisition was endorsed by the then IIC, K. M. Meher. The I.O. visited the spot, prepared spot map vide Ext.9. On the same day, the injured S. Nachaya succumbed to the injury at 3:30 CRA No.395 of 1993 Page 3 of 16 // 4 // P.M. at Sub-Divisional Hospital, Chhatrapur. The charge of investigation was thereafter taken by the IIC, Chhatrapur. Subsequently, on the same day, the IIC issued requisition to hold the inquest over the dead body of S. Nachaya. The I.O. held the inquest and sent the dead body for post mortem against the requisition issued for the purpose under Ext.10/1. The I.O. received the Post Mortem report from Sub- Divisional Hospital, Chhatrapur so also the viscera of the deceased which was sent for chemical examination. I.O. seized the bed head ticket of the deceased S. Nachaya under Ext.13, seized the Post Mortem Report and upon completion of the investigation he submitted the Charge-Sheet. 8. The case of the defence is one of complete denial and false implication. 9. The prosecution, to prove the culpability of the Appellant examined twelve witnesses in all. While P.W. 1 is the sister of the deceased, P.W.2 is his mother. P.Ws.3, 4, 5 & 6 are the co-villagers. P.W.7 is the Revenue Officer who was vested with the power of the Executive Magistrate stated to have recorded the statement of dying declaration of the deceased. P.W.8 is the P.G. student of SCB Medical College and Hospital. P.W.9 is the Medical Officer attached to SDH, Chhatrapur who conducted the Post Mortem examination on the dead body of the deceased. P.W. 11 is the I.O. 10. The learned trial court having believed the testimonies of P.W.1 & 2, the sister and the mother of the deceased respectively found their evidence to be natural, they being the eye-witnesses to the occurrence and further the evidence of P.W.9, Medical Officer and that of the independent witnesses P.W.7 found the case of the prosecution to be CRA No.395 of 1993 Page 4 of 16 // 5 // beyond reproach and held the Appellant guilty under Section 304-Part-II IPC and sentenced the Appellant as described above. 11. The learned counsel for the Appellant submitted that the evidence led through the P.W.1 & 2 is neither consistent nor cogent to inspire confidence that they are the eye-witnesses to the occurrence and that they have seen the deceased got assaulted by the Appellant. It is further argued that the case of the prosecution is far from truth and the overt act shown by the Appellant as alleged could not be taken as one having intention to cause the injury. This is because the Appellant was neither armed with weapon nor did he cause assault with intention that the injured would die of the assault. It is also argued that the injury detected on the injured also is not on the vital part of the body and as such there was no material before the learned trial court to attribute anything against the Appellant to hold him guilty for the death caused to the deceased and as such Appellant is entitled to an acquittal. 12. The learned counsel for the State on the other hand justified the impugned judgment and order of the court to be legal and proper. It is
Legal Reasoning
58. This Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh reported in (2007) 15 SCC 465 and Bhajju alias Karan Singh v. State of Madhya Pradesh reported in (2012) 4 SCC 327 had explained the meaning and principles of dying declarations CRA No.395 of 1993 Page 10 of 16 // 11 // upon which its admissibility is founded, with the following observations: - “20. There is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life and Death of King John, Shakespeare had made Lord Melun utter “Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, … lose the use of all deceit” and asked, “Why should I then be false, since it is true that I must die here and live hence by truth?” William Shakespeare, The Life and Death of King John, Act 5, Scene 4, lines 22-29. xxx xxx xxx 22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. 23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator. 24. There is a legal maxim “nemo moriturus praesumitur mentire” meaning, that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act state: “when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground CRA No.395 of 1993 Page 11 of 16 // 12 // for his veracity and therefore the tests of oath and crossexamination are dispensed with”. 25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.” (Emphasis supplied) 59. This Court in Bhajju (supra) has observed as under: “23. The “dying declaration” essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when 16 the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. xxx xxx xxx 26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. ...” 60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit. 61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly CRA No.395 of 1993 Page 12 of 16 // 13 // reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone. 62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration CRA No.395 of 1993 Page 13 of 16 // 14 // is reliable as the accused is named in the dying declaration as the assailant. 64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful. 65. In Sujit Biswas v. State of Assam reported in (2013) 12 SCC 406, this Court, while examining the distinction between “proof beyond reasonable doubt” and “suspicion” in para 13 has held as under: “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all CRA No.395 of 1993 Page 14 of 16 // 15 // features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.” 66. It may be true as said by this Court, speaking through Justice Krishna Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh reported in (1974) 4 SCC 267, that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct. Even applying this principle, we have a doubt as regards the complicity of the appellant-convict in the crime. 67. In the present case, it is difficult to rest the conviction solely based on the two dying declarations. At the cost of repetition, the PW-2 has been otherwise also not believed by the High Court. 68. As discussed above, the oral evidence of the PW-4 Soni, also does not inspire any confidence. We are not satisfied that the prosecution has proved its case against the appellant-convict beyond reasonable doubt. 69. We, therefore, allow these appeals and acquit the appellant-convict of all the charges levelled against him. The appellant-convict is, therefore, directed to be released forthwith provided he is not required in connection with any other case or cases. 21. In the case in hand as discussed, the death of the deceased occurred just half an hour before the alleged recording of the statement. The pulse rate and the B.P. recoded low by then which the doctor opined to be not recovered till 2 P.M when allegedly the dying declaration was stated to CRA No.395 of 1993 Page 15 of 16 // 16 // have been recorded. The doctor treating the patient though present at the relevant time did not certify the condition of the patient to be fit to give statement. In the above circumstances, keeping in view the various circumstances drawn in accepting a dying declaration held by the Apex Court the present one measurably fall short to accept the same as reliable to hold the culpability of the Appellant in the assault made on the deceased to be beyond reasonable doubt. 22. This Court, therefore, finds the reasons assigned by the learned trial court in the impugned judgment in holding the Appellant guilty and convicting him there under being not in conformity with law and evidence set aside the same being not free from doubt and accord its opinion to acquit the Appellant of the charge under benefit of doubt. The Appellant is accordingly acquitted from the charge extending the benefit of doubt. He be discharged from bail bond. In the result the Appeal is allowed. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Feb-2024 18:03:48 CRA No.395 of 1993 Page 16 of 16
Arguments
submitted by learned counsel for the State that the evidence of the eye- witnesses account namely P.W.1 and P.W.2 being consistent not only to the statement made by them during trial but otherwise as made before the I.O. recorded under Section 161 CrPC is beyond doubt and can very well be relied upon as correctly done by the learned trial court and the evidence brought through those witnesses coupled with the medical evidence and the statement of the injured himself prior to his death giving a complete narration of the manner in which the incident occurred is sufficient to fasten the Appellant on the offence charged. CRA No.395 of 1993 Page 5 of 16 // 6 // 13. Having regard to the argument advanced by the parties, before delving into the merit of the case as to the findings recorded by the learned trial court the moot question that requires determination is whether P.W.1 and P.W.2 are eye-witnesses to the occurrence and that the evidence led through them is reliable and sufficient to bring home the charge. 14. P.W.1 in her evidence on oath stated that the Appellants are co- villagers and the deceased was her brother. On the date of occurrence at about the supper time her brother came and sat in the house. She took her brother to the house of her mother namely Asihrama. While she and her brother were in the house of her mother they heard the Appellants rebuking her brother. Her brother asked the Appellants why they were rebuking him unnecessarily over the past dispute which had since settled, the Appellants got enraged and by asking her brother as to why did he challenge their rebuking, the Appellant G. Suba Rao along with G. Achiama and G. Chinnaya came near to her brother and pressed him down in the drain near the house. While they were pressing her brother in the drain, her brother was making several attempts to get up from the drain and on his each attempt he was being pressed further and further and pushed to the drain. On her arrival for intervention, she was assaulted by the Appellants who pulled her hair. Her brother was lying in the drain. He was having severe pain on his stomach, he was groaning with pain and nobody was there to come to his rescue. Later she along with her mother lifted her brother S. Nachaya out of the drain and brought to the house and took him to Chhatrapur Hospital. P.W.1 stated that she reported the incident orally which the police reduced to writing and took her thumb impression. Several statements made by the P.W.1 in her sworn testimony was confronted to her to have not stated before CRA No.395 of 1993 Page 6 of 16 // 7 // the Police, on her denial the same was confronted to the I.O. who affirmed the P.W.1 to have not stated before him. Consequently, the substantive evidence adduced by P.W.1 is found contradicted on the material particular, more so with respect to her presence at the scene of occurrence. From the narration made in the FIR it reveals as if the P.W.1 having heard hulla went to the spot whereas the evidence discloses the incident to have occurred in her presence as well as in presence of her mother though the P.W.1 did not whisper the presence of her mother in the entire occurrence till her brother was finally rescued from the drain. From the evidence made on oath it also appears that the deceased was dragged from the house of the mother of P.W.1 whereas her evidence appears as if she reached afterwards and intervened. It is true that the witnesses is an illiterate lady and she has neither submitted a written report on her own hand writing nor has her control over the statement made by her U/s 161 Cr.P.C. In such eventuality at least the evidence adduced by her must be consistent as the same is deposed the incident during trial that started only after ten months of the incident. The omissions and contradictions being on the material particular could not be ignored. 15. As regards P.W.2, the mother of the deceased, in her evidence she stated that on the night of occurrence her son (the deceased) went to the house of P.W.1 and asked one rupee to her husband. At that time G. Chinnaya was rebuking. On being challenged by his son why he was unnecessarily rebuking, there arose a dissension. P.W.2 further stated that the Appellants got enraged on the protest being made by the deceased and they put her son into the drain and pressed him down. Hearing the sound of her son, she rushed for his rescue and while approaching him she saw the Appellants assaulting her son in the drain CRA No.395 of 1993 Page 7 of 16 // 8 // and went away. At her sight, the Appellants left her son in the drain. It is also stated by the P.W.2 that she has seen the Appellants assaulting her son who was in drain. According to this witness, she along with P.W.1 brought the deceased from the drain to their house and deceased had received injury on his arm, belly and back. On the following day, they took the deceased to the hospital for want of money. This witness was also suggested the statement made by her in her evidence to have not been stated before the I.O. On her denial she same having confronted to the I.O he affirmed the witness to have not stated before him. Admittedly in her evidence while the P.W.1 stated the incident happened while the deceased was in the house of P.W.2, in her evidence P.W.2 stated the same to have occurred when the deceased was in the house of P.W.1. The contradictions brought by the defence raises a strong suspicion with regard to the presence of both P.Ws.1 and 2 at the scene of occurrence when the Appellant along with others allegedly to have assaulted deceased. None the less it is the evidence of the prosecution that fist blows were given to the deceased and admittedly no weapon of offence even to the extent of a lathi was used in the assault made on the deceased may it be by the Appellants or otherwise. 16. P.W.8, the Assistant Surgeon, Sub-Divisional Hospital, Chhatrapur deposed on oath that he gave treatment to the deceased on 31.07.1992 who was having pain in the abdomen and was vomiting since last two days. According to the doctor, the injured received fist blows to the abdomen following which he developed the above and as the condition of the patient was in a state of moribund he referred him to surgery for specialized treatment and accordingly P.W.9 examined the deceased and found injuries to the his persons and opined that the injuries are sufficient in ordinary course of the nature to cause death. He also proved CRA No.395 of 1993 Page 8 of 16 // 9 // the Post Mortem Report vide Ext.4. The doctor though denied the suggestion given by the defence with regard to the fact that the deceased did not receive assault nor was put to drain, the doctor did not accept the same. From the evidence of the doctor it is clear that the injuries suffered by the deceased that caused his death is out of sufficient force used against him and not by fall on a drain by sleep of feet. 17. From the overall evidence as discussed above it emerges that the P.Ws. 1 & 2 though had the occasion to reach the spot, by the time they reached, the Appellants had already left the spot and the deceased was lying injured. Consequently, P.W.1 and P.W.2 cannot be held to be eye- witnesses to the occurrence and the same cannot accepted as reliable. 18. Leaving aside the said evidence of P.W.1 and P.W.2, the P.Ws. 4, 5, 6 & 7 who are the co-villagers did not support the case of the prosecution and turned hostile. 19. In the above scenario only the circumstantial evidence besides the opinionative evidence led by the doctor remained for consideration before this Court for appreciation to hold if the Appellant to be the perpetrator of the crime. In this regard the prosecution led evidence of dying declaration of the deceased recorded by the executive magistrate. P.W.11, the I.O stated that having come to know the condition of the deceased to be in a deteriorating state made requisition for deputation of the executive magistrate and accordingly P.W.7 recoded the dying declaration. P.W.7 in his evidence on oath stated that while he was Revenue Officer vested with power of Executive Magistrate posted at chhatrapur received requisition from the then Sub-divisional Magistrate, chhatrapur to record the dying declaration of one S.Nachaya of village Arjapalli who was admitted to Govt. Hospital, Chatrapur. He proceeded CRA No.395 of 1993 Page 9 of 16 // 10 // to the Govt. Hospital, Chhatrapur, met the injured patient S. Nachaya admitted against bed No.16 in Male Surgical Ward. He tested the injured and found him mentally fit to give rational answer to the questions put to him. The injured was not able to understand Oriya and therefore assistance was one Mahendra Sahu was taken to interpret the questions and answer. To his question as to who assaulted him, S.Nachaya told that he was assaulted by G.Suba Rao, G.Achamma and G.Chinnaya with fist blows and kicks on his person. He further told that due to the assault he fell down in the nearby drain. The witness proved the statement vide Ext.2.He proved his signature as well as the signature of the interpreter vide Ext.2/1 and 2/2 respectively. In his cross examination the witness stated that he left his office at 1.30 P.M and reached the Hospital at 2 P.M on 31.07.1992. P.W.8 the doctor who admitted the deceased stated that he admitted the patient at 8.30 AM on 31.07.1992 and he was complaining pain on his abdomen since last two days. According to P.W.9 the patient was given the last treatment at 2.30 P.M where after he died. P.W.9 in his evidence has state that the B.P. and pulse rate was recording low and was not recoverable till 2 P.M. Admittedly the doctor P.W.9 though was present at the time of recording of the statement by the Executive Magistrate has not certified the patient to be in a fit condition physically and mentally to give statement. 20. The Apex Court in the matter of IRFAN @ NAKA versus THE STATE OF UTTAR PRADESH reported in 2023 Live Law (SC) 698 elaborately discussed the law on dying declaration as under:-