HC: Dying declaration recorded by Magistrate cannot be doubted

The Aurangabad bench of the Bombay High Court recently held that a dying declaration recorded by a Magistrate cannot be doubted. The HC said that a Magistrate — an officer of the court — would not fabricate the contents of a dying declaration to implicate an accused.

A division bench of Justice Sunil Deshmukh and Justice PR Bora delivered the ruling while convicting a 31-year-old man, who killed his wife by setting her ablaze.

The judges were seized with a bunch of criminal appeals filed by the Maharashtra police challenging the orders of a lower court. The lower court had acquitted Baban Bansode and his family members, for setting his wife on fire in December 2000.

The lower court while acquitting the Bansode family considered their contention that the contents of the dying declaration recorded by a District Magistrate were not correct since Baban's wife, who had sustained 98 per cent burn injuries, was not in a fit state of mind. The accused had also doubted the authenticity of the declaration.

According to the case of the prosecution, Baban killed his wife by setting her ablaze. It claimed that Baban doubted his wife's character and so killed her.

A dying declaration of the victim was recorded by a District Magistrate on the very next day after she was admitted in hospital. In her dying declaration, the victim specifically stated that her husband had set her on fire since he suspected her character.

Having scrutinised all the material placed on record, the judges said, “We have perused the testimony of the Magistrate and it appears he had followed the due procedure by first obtaining the opinion of the doctor, who suggested that the victim was in a fit state of mind and is able to give her statements.”

“Apparently, there appears no reason for doubting the facts, as are deposed by the officer of court, who is a responsible officer holding the post of Judicial Magistrate First Class (JMFC). He was a disinterested witness and as such, we do not find any reason to disbelieve the facts, as deposed by him. In the circumstances, merely because the Magistrate was unable to state name of the said medical officer who gave the opinion, his testimony cannot be discarded or disbelieved,” the judges said.

The judges further said, “Thus, the Magistrate being a disinterested witness and a responsible officer of the court we cannot suspect his testimony. The fact that the Magistrate had no animus against the accused or was in any way interested for fabricating the dying declaration, question of doubt on the declaration recorded by the Magistrate does not arise.”

Accordingly, the judges quashed the judgement passed by the lower court acquitting Baban, however, allowed the release of his family members as there was no material evidence against them.

The judges handed a sentence of life imprisonment to Baban and directed him to surrender before the police immediately.

The Aurangabad bench of the Bombay High Court held that a dying declaration recorded by a Magistrate cannot be doubted. The HC said that a Magistrate — an officer of the court — would not fabricate the contents of a dying declaration to implicate an accused. A division bench of Justice Sunil Deshmukh and Justice PR Bora delivered the ruling while convicting a 31-year-old man, who killed his wife by setting her ablaze.