-By Esha Goyal
Section 32(1) of the Indian Evidence Act, 1872 allows for a dying declaration in the form of a statement regarding the cause of the declarant’s death to be made a relevant fact. The criminal rules of practice of each State in India require the declarant to be in a ‘fit state of mind’ when such statements are made. This paper argues that the ‘fit state of mind’ requirement, though subjective, has to be interpreted from the perspective of the declarant and not the recorder of such statement, as judicial interpretation has led it to be. In this regard, this paper examines the case of State (Govt. of NCT of Delhi) v. Ram Singh, commonly known as the ‘Nirbhaya rape case’ and proposes that first, ‘fit state of mind’ should be defined as the declarant being conscious, oriented and mentally alert as used in Ram Singh and second, that only the doctor’s opinion regarding the declarant’s state of mind should decide whether such a requirement has been fulfilled.
What Does ‘Fit State of Mind’ Actually Mean
Numerous state rules require that the declarant be in a fit state of mind while giving her dying declaration and require a doctor’s certificate to that end, yet no rule elaborates as to what actually constitutes a fit state of mind. The intent behind leaving this requirement undefined might have been to cater to individual subjectivities of the declarants but years of litigation has made it apparent that ‘fit state of mind’ needs to correspond to a defined mental state in order to stand in court. The question then, is what constitutes a fit state of mind for the purposes of recording a dying declaration.
One of the earliest standards laid down by the Supreme Court of India was in Lallubhai Devchand Shah v. The State Of Gujarat where it was held that the declarant must satisfy the recorder of the statement that the declaration was being made consciously with a full understanding of the implications of the words being used. Essentially, it was the recorder of the statement who would have to determine the fitness of the declarant by determining whether the statement was being made consciously and voluntarily with a ‘normal understanding’ of the words used. There were two main implications of this case. First, it attached intention, voluntariness and understanding to constitute a ‘fit state of mind’. Second, it implicitly indicated that the state of mind of the declarant had to be ascertained while she was giving the declaration, and not before or after.
This standard was applied in the case of Paparambaka Rosamma v. State of Andhra Pradesh which laid down a very important distinction between the declarant being ‘conscious’ and the declarant being in a ‘fit state of mind’. Since the doctor had only attested to the fact of the declarant being conscious, as opposed to the required ‘fit state of mind’, the court had held the dying declaration to be unreliable since the mere fact of the declarant being conscious did not indicate that she was also in a fit state of mind to make her statement.
However, Laxman v. State of Maharashtra overturned the decision in Rosamma and laid down a completely different standard, which is still applicable today. The constitutional bench in Laxman struck down Rosamma for being hypertechnical and laid down the new standard of the declarant being ‘conscious enough to make the statement’. What the decision in Laxman essentially did was first, equate fit state of mind to being conscious and physically capable of giving a statement and second, sideline the doctor’s certificate as merely being a rule of caution and prefer eyewitness testimony over medical opinion.
This led to a series of decisions where mere consciousness on part of the declarant was considered to fulfil the requirement of ‘fit state of mind’ irrespective of the level of consciousness or mental alertness. Further, since Laxman had held the doctor’s endorsement to be only a rule of caution, such cases admitted and strongly relied on dying declarations made only on the recorder’s satisfaction that the declarant was conscious, without a doctor’s opinion on the declarant’s state of mind (Shanmugam v. State of Tamil Nadu; Sher Singh v. State of Punjab).
This paper argues that the test evolved in Laxman has diluted the essence of the ‘fit state of mind’ envisaged in the criminal rules of practice and a correct standard would be treating a conscious, oriented and mentally alert state only to satisfy such a requirement, as was done in Ram Singh. Further, a doctor’s certificate to that effect ought to be mandatory because eyewitness testimony is likely to be biased in favour of the defence or the prosecution in all cases.
State (Govt. of NCT of Delhi) v. Ram Singh
From an evidentiary perspective, State (Govt. of NCT of Delhi) v. Ram Singh had eyewitness testimony and medical, forensic and other evidence in addition to the three dying declarations. This paper is limited to the aspect of dying declarations, specifically, the mental state of the declarant while such statements were being recorded.
In the present case, the declarant had made three dying declarations. The first one, dated 16.12.2012 was made to a doctor immediately on being admitted to the hospital after the incident and was recorded as a Medico Legal Case (a case where the doctor feels that the police have to be notified). The second declaration was made to the Sub-Divisional Magistrate on 21.12.2012 and the third was made to the Metropolitan Magistrate on 25.12.2012. For both the second and the third declarations, the declarant was certified by the doctor to be conscious, oriented and meaningfully communicative which was interpreted by the court as the declarant being ‘mentally alert’ to give her statements.
Treating ‘fit state of mind’ as something more than a mere physical ability to give a statement (since consciousness is the only mental state required as per Laxman) is necessary because first, dying declarations are considered to have very high probative value and are often the only source of identification of the accused. Given the fact that an uncorroborated dying declaration may form the sole basis of conviction if it inspires the trust of the court (as held in Khushal Rao v. State of Bombay) it is pertinent to have some safeguards in what is otherwise a hearsay statement. A medically certified, alert state of mind is one such safeguard to avoid allegations of fabrication of evidence.
Second, since a dying declaration as per section 32(1) may be made by signs and gestures instead of speech, (Queen Empress v. Abdullah) as was the case in the third declaration recorded in Ram Singh, it is imperative that the declarant be not only conscious, but also sufficiently alert and meaningfully communicative to be aware of what those signs and gestures mean. If the ‘fit state of mind’ requirement is fulfilled by the lower standard of consciousness, it could possibly lead to outcomes where the recorder’s assumptions and interpretation completely substitute the declarant’s intentions who might not be oriented enough to know what those gestures signify. This is crucial in light of the fact that rules pertaining to the recording of dying declarations mandate that the statement must be free and spontaneous and record the actual words of the declarant as far as possible.
Lastly, a large number of dying declarations are recorded while the declarant is in great pain or under the influence of heavy painkillers or sedatives. Though courts have consistently held that severe pain or injury does not automatically disqualify the declarant from being of a fit state of mind, (Jose v. State of Kerala; Rambai v. State of Chhattisgarh) the combined effect of physical shock and painkillers might lead to delusion, where the declarant might technically be of a fit state of mind since she is conscious and able to speak, yet the statement might be unreliable, as was the case in Sampat Babso Kale v. State of Maharashtra. Further, a requirement for mere consciousness is problematic not only due the resulting lack of mental faculties but also because the influence of painkillers might be said to detract from consciousness itself in the form of drowsiness and slower responses. However, if only the consciousness standard is maintained, and doctor’s opinion is rebuttable by the recorder’s opinion, it might lead to anomalous cases where a doctor might declare a victim unfit to give a statement due to drowsiness, yet the statement might be recorded and relied upon (Upender Sahni v. State). In such a scenario, if the ‘fit state of mind’ requirement comprises of something more that consciousness, in the form of the declarant being oriented and mentally alert, the fulfilment of the latter might make up to some extent for lack of the former, allowing the declaration to be reliable in court.
The need for this new standard is evident from the treatment of dying declarations in Ram Singh. Though the court does not overtly examine the issue of whether the declarant was of a fit state of mind beyond noting the fact that the doctors had certified her ‘mental alertness’, the language used is itself very informative. First, the court seems to insist on the fact that the doctors had determined the declarant to be ‘conscious, oriented and meaningfully communicative’ at the time of recording her second and third statements, seeming to indicate that such a mental state was necessary, even though the court was aware of Laxman. Second, this higher standard was used even in the third dying declaration, which was made by the declarant mostly via gestures due there being an endotracheal tube in her throat, where the court specifically notes the doctor’s opinion that the declarant was ‘conscious, oriented and meaningfully communicative to make a declaration through non-verbal gestures’. Lastly, the fact that the declarant was not experiencing drowsiness under the influence of morphine was also specifically recorded by the Court to support the contention that the declarant was in a condition to make her dying declarations.
Though these observations made by a trial court in Ram Singh do not dismiss the standard set by the Supreme Court in Laxman, they do point towards a growing recognition of the fact that for dying declarations to be reliable, they need to be made while the declarant is in an oriented and meaningfully communicative mental state, instead of merely being conscious. This stance was also adopted by the Bombay High Court in Shaikh Babar Shaikh Noor v. The State of Maharashtra.
The Need for Independently Ascertaining the State of Mind
After establishing the fact that ‘fit state of mind’ ought to correspond to an alert and meaningfully communicative state on part of the declarant, this paper also contends that the question of whether the declarant is mentally fit ought to depend only on the doctor and not on the recorder of the statement (whether a magistrate or a police officer). This is for two main reasons.
First, because the mental fitness of the declarant has to be determined in a manner subjective to the declarant, and a doctor having knowledge of the injuries and medication of such declarant is in a better position to assess the mental state than a magistrate putting some stock questions to the declarant on meeting her for the first time. Further, it is contended that for such a determination regarding the declarant’s state of mind, a professional opinion, like that of the treating doctor should be considered to be the final verdict on the victim’s capacity since medical professionals are the only ones in the whole process who could be considered relatively impartial (Laltu Ghosh v. State of West Bengal.
Second, privileging witness testimony over the doctor’s certification of mental fitness (as is done in multiple cases including Nanhau Ram v. State of Madhya Pradeshis problematic because it increases the possibility of the declaration being fabricated. It has been noted in a number of cases such as Surinder Kumar v. State of Haryana, Kanti Lal v. State of Rajasthan and Kanchy Komuramma v. State of Andhra Pradesh that the prosecution’s version of the dying declaration materially contradicts what is stated by other witnesses to be the actual dying declaration either in content or due to the fact that the witnesses contest the ability of the declarant to have made the statement itself. The common factor in all these cases is that there is an absence of the doctor’s certificate and the only test for the ‘fit state of mind’ is the recorder’s opinion.
Thus, it is stated that a doctor’s certification regarding the state of mind of the declarant must be mandatory in all cases. Though rules state that the reasons for the absence of such certificate must be specifically recorded in the special cases where it cannot be obtained, given the probative value of dying declarations and the grave effects on the accused, the fit state of mind of the declarant has to be properly established and the doctor’s certificate to that effect ought to be mandatory.
Conclusion
This paper has established that the current standard of the ‘fit state of mind’ required for recording dying declarations is grossly insufficient for providing any sort of safeguard to the veracity of dying declarations. In this regard, various cases, including State (Govt. of NCT of Delhi) v. Ram Singh have been used to suggest a higher threshold for what constitutes a ‘fit state of mind’. First, ‘fit state of mind’ should be defined as the declarant being conscious, oriented and meaningfully communicative, instead of the present standard of mere consciousness. Second, whether such a requirement regarding the declarant’s state of mind has been fulfilled should be based solely on the doctor’s opinion and not that of the recorder for the dying declaration to be relied on in court. Given the probative value of dying declarations and their ability to convict the accused even when uncorroborated, making sure that the declarant actually means what she says, truth notwithstanding, ought to be the first step in the process of recording dying declarations.
[The author is a third year B.A.LL.B student at NLSIU Bangalore.]