K. J. VAIDYA, J. ( 1 ) [x x x x x x] ( 2 ) [x x x x x x] ( 3 ) [x x x x x x] ( 4 ) [x x x x x x] ( 5 ) WHAT indeed is the professional ethics/duty in the first instance of the Medical Officer attending the injured person (Medico-legal case) in the critical condition in matter of recording his dying declaration more particularly when no chance can ever be taken regarding his either continuing in the state of consciousness any further and slipping into coma and/or even ultimately succumbing to the injuries; and in the second instance what indeed is the duty of the police officer under the provisions contained in Gujarat Police Manual (Part III) in taking and/or making arrangement for recording the dying declaration of the injured? These two are indeed the most important questions often arising in criminal cases which have also incidentally surfaced on the record while examining the evidence of Dr. Y. H. Lakhmani (PW-5 Exh. 22) and the Investigating Officer - Dhanajibhai Ninama (PW-8 Exh -27 ). Accordingly while parting we have the feeling of simply failing in our constitutional obligation if firstly we do not highlight the glaring remissness exhibited in the matter of recording the dying declaration shown by Dr. Y. H. Lakhmani and thereafter the Investigating Officer - Dhanajibhai Ninama with a view to see that such remissness on the part of any Doctor and/or Investigating Officer do not take place in future indeed playing with the cause of justice and secondly for that purpose the concerned doctors and the Investigating Officers are suitably instructed and warned to be extremely vigilant in seeing to it that the cause of justice does not suffer on account of their patent remissness as in all probability happened in the instant case. However before doing this it is indeed necessary first of all to have the background of the case in which the lapse of recording dying declaration by the concerned Medical Officer and Investigating Officer took place. 5. 1. According to the evidence of Dr. Y. H. Lakhmani (PW-5 Exh-22) the injured Chandubhai was brought to Shri Maha Gujarat Hospital at Nadiad on 23-10-1983 at 6. 5. 1. According to the evidence of Dr. Y. H. Lakhmani (PW-5 Exh-22) the injured Chandubhai was brought to Shri Maha Gujarat Hospital at Nadiad on 23-10-1983 at 6. 30 pm and at that time it was found that he had number of serious injuries on his person and was in a critical condition requiring immediate operation. This doctor in para-5 has also admitted that before the injured was operated upon he was conscious. In para-6 of the cross - examination Doctor has also further admitted that he had informed the Police at about 7. 00 pm for recording the Dying Declaration of injured Chandubhai. Incidentally enough at this stage it will not be out of place to point out that though informed the police has failed to respond in recording or getting recorded the Dying Declaration. We feel that looking to the number of serious injuries on abdominal portion the critical condition of the injured and this being the medico-legal case it was indeed quite good of Doctor to have informed the police immediately for recording Dying Declaration of the injured but at the sametime what was good is certainly not found to be enough enough to be enough as thereafter he has miserably failed to discharge his paramount professional duty of himself recording the Dying Declaration more particularly when the injured was in a critical condition required to be emergently operated upon and indeed what ought we know as to whether after the operation he was or was not in a position to regain consciousness or even survive leaving any chance whatsoever for the Executive Magistrate to come to the Hospital and record his Dying Declaration In such critical condition of the injured though it was indeed the fore most duty of Dr. Lakhmani to have himself recorded the Dying Declaration of injured Chandubhai and yet to utter shock and surprise he has failed to perform the same This patent inaction on the part of Doctor in not himself recording the Dying Declaration is indeed a very serious dereliction of duly because the golden opportunity he had at his hand available to take down the same whereby he would have collected usefully the name of the assailant weapon used and the circumstances under which the injured came to be injured/burnt etc. etc. etc. connecting the accused with the crime is just lost because of the avoidable lapse causing irreparable damage to the cause of Justice In fact the underlying importance of Dying Declaration is too well-known to be trumpeted and highlighted either for the investigating agency or the Medical Officer attending the serious injury cases. What is the medico-legal case what indeed is the importance and evidentially value of Dying Declaration and what he is expected to do when an injured is in the critical condition is indeed too elementary thing hardly required to be reminded either to the Doctor or the Police The reason is ordinarily a person on the verge of his passing away from this world however desperate criminal or liar he may be throughout his life but when his/her end is in sight under the constraints of his conscience to speak out the truth he will not tell lie so as to falsely frame-up and get convicted and sentenced an innocent person. For such a dying person bidding good-bye to the world truth is the last lightening flash flicker on his/her dying lips or so to say the last exotic fragrance of his spirit that by uttering the truth while passing away would be leaving behind It is for this reason that the Dying Declaration after the close judicial scrutiny if it is found to be quite voluntary truthful and genuine one the same is always accepted and relied upon without insisting upon any independent corroboration for recording the order of conviction and sentence. In this view of the matter the Dying Declaration is considered to be one of the most important piece of evidence an essential material link connecting the accused with the crime alleged against him that is to say even if for whatever reasons no other evidence direct or circumstantial was forthcoming on the record only the Dying Declaration can still be the basis for recording the order of conviction and sentence and accordingly be useful asset : both in the first instance to the investigating agency in detecting the crime and to arrest the assailant and thereafter for the Court of Law to do the justice. In fact in Modis Textbook of Medical Jurisprudence and Toxicology 21st Edition (1988) by C. A. Franklin. In fact in Modis Textbook of Medical Jurisprudence and Toxicology 21st Edition (1988) by C. A. Franklin. M. D. the learned author at page-14 has streamlined certain useful guidelines to be followed by the Medical Officers attending such injured/burnt person which reads as under :-" (C) Dying Declaration-A dying declaration is a statement verbal or written made by a person since deceased relating to the cause of his or her death or any of the circumstances of the transaction resulting in death. The medical officer attending on such a person should at once send for a stipendiary or honorary Magistrate or a Special Executive Magistrate to record the dying declaration of a person who is likely to die from the effect of criminal violence or other criminal cause. If in his opinion there is no time to call a Magistrate the medical officer should himself record the declaration. It should be recorded in full detail in the vernacular in the actual words of the declarant in the form of question and answer if that had to be done to clarify some point and in the presence of respectable witnesses. The declaration should then be read over to the declarant who should affix his or her signature or mark to it. When concluded it should be signed (time/date also noted) by the medical officer recording it who should also obtain signatures of respectable witnesses. If the declarant becomes unconscious while the statement is being recorded the medical officer writing it must record as much information as he has obtained and sign it. If the statement is written by the declarant himself it should be signed and attested by respectable witnesses. The declaration should then be forwarded in a sealed envelope direct to the District Magistrate or Sub-Divisional Magistrate concerned. If it can be avoided the police officer who is engaged in the investigation of the case should not be allowed to be present when the dying declaration is recorded. No undue influence should also be brought to bear on the declarant who should be permitted to give his statement without any outside prompting or assistance. Leading questions are also not allowed. No undue influence should also be brought to bear on the declarant who should be permitted to give his statement without any outside prompting or assistance. Leading questions are also not allowed. It should be noted that the Calcutta High Court has ruled that in a case where a dying person is unable to speak and can only make signs in answer to questions put to him the questions and signs put together properly be regarded as a verbal statement made by a person as to the cause of his death within the meaning of Section 32 of the Indian Evidence Act and therefore admissible in evidence. But statement of witnesses as to what interpretations they put upon the signs made by the declarant are not admissible. "on reading the aforesaid guidelines it can be seen as to how and exactly in what precise manner and form the Dying Declaration ought to be recorded by the Medical Officer. what extra care should be taken while taking down the same. The importance of the said guidelines lies in this that if there is no time to call the Executive Magistrate the Medical Officer should himself record the Dying Declaration of the person (Emphasis supplied ). It is indeed unfortunate that in this case Mr. Lakhmani has not realized the importance of personally recording the Dying Declaration though he very well knew that injured Chandubhai was in a critical condition requiring immediate operation. May be in a given case looking to the seriousness of the injuries the injured/burnt may not be in a position to give quite an exhaustive account but then the Doctor can certainly put some short questions to the injured inquiring such as : (i) As to who caused injury ? (ii) At what place. (iii) At what time ? (iv) With what weapon or material ? (v) What was the reason or motive for the alleged injury ? (vi) Who were the persons present in and near about the place of offence and at the time of incident : if any ? (vii) Who were the persons who after receiving injuries/burnt came at the place of incident etc. etc. These answers by the injured/burnt to the aforesaid questions would indeed go a long way in helping the cause of Justice vindicated in seeing that the real offender does not go scot free. (vii) Who were the persons who after receiving injuries/burnt came at the place of incident etc. etc. These answers by the injured/burnt to the aforesaid questions would indeed go a long way in helping the cause of Justice vindicated in seeing that the real offender does not go scot free. This duty of Doctor himself recording the Dying Declaration assumes a very great importance in cases where the women are burnt/killed by the inmates of the house either on account of dowry demand not satisfied or some other social reasons like woman not delivering a child or some other suspicion etc. etc. In fact it is an urgent demand of the time calling upon the Medical Officers attending such injured/burnt cases to see for themselves that in order to save the cause of justice not failing and accused fleeing from the punishment he should immediately step in and record the Dying Declaration of such injured/burnt person without waiting for the Executive Magistrate or Police to come. No honest sincere and conscientious Doctor can certainly ever dare afford to take chance with persons seriously injured or burnt for what ought we know that either under the acute pain and agony of the injury/burns and/or drugs effect the victim may or may not remain conscious and ultimately succumb to the injuries/burns. If under such circumstances if because of the gross remissness of the Doctor the Dying Declaration is not recorded and the cause of justice was to suffer the said remissness would remain accountable for all the times to come and whether some departmental actions are taken against Doctor or not but the conscience of the concerned Doctor shall never pardon him. 5. 2 That takes us now to the second important question as to what is the duty of the Police Officer in taking and/or making arrangement for recording the Dying Declaration of injured. As stated above on perusing the cross-examination of Dr. Lakhmani at para-6 it is very clear that though he has informed the police for recording the Dying Declaration immediately on 23-10-1983 at about 7. 00 pm the police has failed to respond it by sending yadi to the Executive Magistrate for doing the needful. It also further appears from the evidence of Dr. Lakhmani that though the injured Chandubhai ultimately succumbed to his injuries and passed away on 23-10-1983 at 11. 00 pm the police has failed to respond it by sending yadi to the Executive Magistrate for doing the needful. It also further appears from the evidence of Dr. Lakhmani that though the injured Chandubhai ultimately succumbed to his injuries and passed away on 23-10-1983 at 11. 30 am and accordingly available for about four hours and yet quite surprisingly the Investigating Agency has not responded to the same Of course both the Police Head Constable Ratilal Kabhai (PW-7. Exh-26) and Investigating Officer Dhanajibhai Ninama (PW-6 Exh-27) in their evidence do not say a word of having received any message regarding recording of Dying Declaration of the injured Chandubhai from Doctor at any time. What they have staled before the Court is about the only information they received namely that injured Chandubhai had expired during the treatment. Now whether the Doctor is right when he has asserted before the Court that he had informed the police or whether it is the police evidence that they have not received any information regarding the recording of Dying Declaration is something which this Court may not enter into discussion however the fact remains that Dr. Lakhmani who is an independent witness has no axe to grind when he stated before the Court that he has informed the Police for recording the Dying Declaration of injured. In this view of the matter the evidence of Doctor in a given case cannot be easily thrown away without any convincing reasons. Be the case as it may. If indeed the Police had received the message from Dr. Lakhmani as asserted by Doctor then in that ease both the Police Head Constable Ratilal Kabhai as well as Investigating Officer Mr. Dhanajibhai Ninama have simply failed in their respective duties in not making the necessary arrangements for recording the Dying Declaration of the injured Chandubhai. If Dr. Lakhmani is believed to be true than in that case it is indeed a very serious lapse on the part of both the Police Officers and accordingly the sad commentary on their sense of duty and quality of investigation Of course this does not absolve in the first instance Dr. Lakhmani not discharging duty on his part in recording the Dying Declaration in question. Lakhmani not discharging duty on his part in recording the Dying Declaration in question. It is really unfortunate that despite the exhaustive guidelines given in Rule 173 in matter of recording the Dying Declaration under Chapter V of the Police Manual which pertains to Detailed procedure regarding investigation the same is just ignored as if no such guidelines existed at all In fact the question does often arise in the mind of the Court as to what indeed the Superior Police Officer are doing so as to supervise and see whether the directions given in the Police Manual were complied with or not ?? And further indeed any responsible police officer true to the salt was discharging his duty in copy book manner in supervising and guiding the sub-ordinate investigating officers ? In fact the Rule 173 of the Gujarat Police Manual (Vol-III) in terms lay down as to how and in what precise manner the arrangement should be made for recording the Dying Declaration. The said Rule 173 reads as under :-"173 Dying Declaration - (1) Whenever a person whose evidence in a case is likely to be relevant as to the incidents or the circumstances which have eventually resulted in his death is likely to die it is advisable to record his dying declaration which is relevant as evidence under Section 32 (1) of the Evidence Act in every ease in which the cause of that persons death is in question even if such a declaration is made to a Police Officer it is admissible in evidence and its use is not barred by Section 162 Criminal Procedure Code. (2) In the normal course dying declaration should ordinarily be got recorded by the Executive Magistrates and if possible in the presence of the accused. The Judicial Magistrates should be approached only when the Executive Magistrates are not available. In case it is not practicable to get the declaration recorded either by an Executive Magistrate or a Judicial Magistrate in time an Investigating Officer should record it preferably in the presence of the panch. Even if it has been made orally in the presence of any person it may be proved in Court by the oral evidence of that person. The declaration becomes admissible if the declarant subsequently dies. Even if it has been made orally in the presence of any person it may be proved in Court by the oral evidence of that person. The declaration becomes admissible if the declarant subsequently dies. If he survives it will be useful if made before a Magistrate only to corroborate his oral evidence as a witness in Court. If it was made before a Police Officer it will be treated only as a statement covered by Section 162 Criminal Procedure Code. (3) The declaration must be complete by itself. If the declarant dies before he has finished it or if it contains any indication that he intended to modify or add to it it will not be of any evidentiary value. The person making the declaration must be a competent witness and must be speaking from personal knowledge of the facts. If reduced to writing by the Police the declaration should as far as possible be in the form of questions and answers and in the very words of the declarant. If practicable the declarant should be asked to sign it and the panch and the Police Officer should attest it. Signs (Section 119 Indian Evidence Act) made before the death explaining the cause of death can be a statement under section 162 Criminal Procedure Code and is admissible as a dying declaration. (4) Dying declaration of a married woman committing suicide should not be recorded in the presence of her mother-in-law father-in-law husband or any other influential person in the family of the husband. As far as practicable a well respected nonpartisan social worker if immediately available should be invited as a panch when such a dying declaration is recorded. (5) The first information report given by a complainant can be treated as dying declaration if he subsequently dies and is not available for examination. (6) (a) The person making a dying declaration shall if possible be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (6) (a) The person making a dying declaration shall if possible be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (b)The dying declaration after it has been recorded should be read over by the person recording it and should be signed by the maker of it but in law whether the statement recorded is over or not whether it is signed makes no difference and that the fact that it has been read over and signed by the deponent only makes it evidentiary value stronger. " Thus the aforesaid remissness on the part of the Investigating Officer in not recording the Dying Declaration despite being informed by Dr. Lakhmani clearly highlights and exposes the situation as to what sorry pass the investigation of the serious case like the murder has come to where the Court is required to draw the attention of the higher-ups in the State Government to impress upon all the Investigating Officers as regard their duty in the matter of recording the Dying Declaration on the basis of the guidelines laid down on Rule 173 of the Police Manual. Anxious and worried as we are to see that the cause of justice should not fail due to remissness as the one noticed in the instant case the Secretary Home Department should see to it that the concerned Medical Officers as well as Investigating Officers are issued a fresh and special circular if necessary repeatedly at some regular interval of 6 to 12 months reminding/impressing upon them to their paramount duty in the matter of recording Dying Declaration on the basis of the guidelines given to the Medical Jurisprudence and Gujarat Police Manual as pointed out above. Not only that but the aforesaid duty of the Medical Officer in the matter of recording the Dying Declaration of the injured/burnt attending them assumes still greater importance in Gujarat more particularly where the cases of dowry death and the bride burning poisoning and other atrocities on women are increasingly and unabatedly going on in the most alarming way where the killing-spree of the greedy atrocious husband and in-laws of the bride many a times go unpunished simply because of the sheer negligence on the part of the Medical Officer and/or the Police Officer in failing to record the Dying Declaration at the earliest throwing the flood of light on the alleged crime connecting the accused with the crime We feel that it is also high-time that both the Medical Officer as well as Investigating Officer in an unmistakable terms are told about their duties in the matter of recording Dying Declaration and that if they are found to be careless and negligent in discharging the same they would be accountable answerable and visited with the departmental inquiries and the serious consequences that may follow at the end of such proceedings. For this purpose of checking and controlling erring Medical Officers and the Investigating Officers it shall also be the duty of every Court coming across such patent remissness on the part of concern Medical Officer and Investigating Officer to immediately send the copy of its judgment with observation to (1) The Secretary Home Department State of Gujarat Gandhinagar; (2) Director General of Police Gujarat State Ahmedabad and (iii) District Superintendent of Police of the concerned area. If this is also not done by the Court as directed it would be serious dereliction of duty on the part of the concerned Trial Judge. 5. 3 So far as the Investigating Officer is concerned the matter does not rest here as it further appears from the record that over and above the remissness exhibited in not recording the Dying Declaration he has also tried to over do something adding gloss to the prosecution case which is unwarranted on reading the record. To illustrate for example; in the instant case it is indeed too distressing to find that though the name of one Arvind Manibhai is given in the FIR (Exh-13) as a person who informed the police station officer regarding the alleged incident attributing respondent Nos. To illustrate for example; in the instant case it is indeed too distressing to find that though the name of one Arvind Manibhai is given in the FIR (Exh-13) as a person who informed the police station officer regarding the alleged incident attributing respondent Nos. 1 and 2 respective roles the Investigating Officer Dhanjibhai Ninama (PW-8 Exh-27) quite surprisingly has not recorded his statement It is indeed just inconceivable that any Investigating Officer would commit such a patent mistake If Arvindbhai was named as an informant after recording the FIR ordinarily Arvindbhai should have been the first person whose statement must have been recorded by the Investigating Officer and still not only his statement is not recorded but no explanation worth the name is forthcoming on the record for not recording his statement. This is indeed too serious a thing to be lightly taken and we are afraid that if this case fails on any account possibly it is because of not recording the statement of Arvindbhai for what ought we know he may be an eye-witness and yet benefit of his evidence is not made available to the Courts of law. Not only that but so far as other eye-witness Ramabhai Chaturbhai (PW-1. Exh-11) is concerned his name nowhere figures in the complaint Exh-13 and yet the Investigating Officer has recorded his statement as if Rambhai was an eye-witness and who indeed posed himself as an eye-witness before the Court Thus these two things i. e. on the one hand the Investigating Officer failed to record the statement of Arvind Manilal which was his first duty to record and on the other hand to introduce the evidence of Ramanbhai Chaturbhai who nowhere figures on the record as an eye-witness and yet he is sought to be brought in as an eye-witness is indeed quite astonishing and typical unscrupulous police way of doing and undoing the things If such investigations are permitted it would play havoc with the Administration of Justice in asmuch as the real offenders may go scot free and sometimes even an innocent person may be roped in and get punished at the hands of Court of Law To countenance lightly such gross remissness we believe would be to become a party to a conspiracy against the cause of justice itself and indeed we cannot be a party to such things. Ordinarily investigations are supervised by the superior officers viz. . Dy. SP. We do not know whether it is a formal requirement of the Police Manual or whether infact that duty is carried out in letter and spirit. This doubt often arises in our mind due to most inefficient and slip-shad investigation carried out by the Investigation Officers resulting into acquittals. If investigations are properly supervised by the superior officers the chances of acquittal will go on diminishing. raking into consideration the facts of this case prima facie it appears that both Mr. Ninama and his superiors have not taken desired care to supervise the investigation so far Investigation Officer of the present case concerned. ( 6 ) WE have analysed and discussed in the first instance the duty of the concerned Medical Officer attending the injured in a critical condition as regard his duty of recording the Dying Declaration without waiting either for the Police or the Executive Magistrate to come to the Hospital; in the second instance the duty of the Investigating Officer in recording the Dying Declaration; in the third instance the duty of superior Police Officer to monitor and guide his sub-ordinate officers in order to see that the investigation in a serious case is carried out in depth and in a copy-book manner and in the forth instance duty of the Court conducting the trial making suitable observation and sending copies of its judgment to all the concerned for necessary information and action with the hope that the same will be taken due care by the State Government at the earliest so as to see that the criminal justice do not fail on account of dereliction of duty on the part of all concerned. 6. 1 Registrar is directed to forward a copy of this judgment to : (i) The Secretary Home Department State of Gujarat Gandhinagar; (ii) Director General of Police Gujarat State Ahmedabad and (iii) District Superintendent of Police of the concerned area; at the earliest. ( 7 ) IN the result this appeal fails and is dismissed. Bailable warrant stands cancelled. .