Presence Of Magistrate Not Mandatory For Recording Dying Declaration; Conviction Can Be Based On DD Recorded By Police: Bombay High Court

"Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording." Bombay High Court, in a significant ruling dated June 23, 2026, held that the credibility of a dying declaration is not diminished merely because it was recorded by a police officer instead of a Magistrate, provided it is found to be truthful and voluntary.

A bench of Justice Manish Pitale and Justice Shreeram V. Shirsat observed that there is no absolute rule of law requiring a dying declaration to be recorded in a specific format or by a specific authority to be admissible.

The appellant, Meenabai Lobaji Gaikwad, challenged her conviction and life sentence for the murder of her daughter-in-law, Savitra. The prosecution alleged that on April 17, 2013, the appellant poured kerosene on the deceased and set her ablaze following a dispute over money required to release mortgaged gold ornaments. The case primarily rested on a dying declaration recorded by an Assistant Police Inspector (API) while the victim was undergoing treatment at Sassoon General Hospital.

The primary question before the court was whether a dying declaration recorded by a police officer, and not a Magistrate, could form the sole basis of conviction. The court was also called upon to determine if the lack of a question-answer format in the declaration vitiated its evidentiary value and whether the statement was a product of tutoring by relatives.

Dying Declaration As Sole Basis For Conviction

The Court emphasized the settled legal principle that a conviction can be based solely on a dying declaration if it inspires the full confidence of the court. Referring to the legal maxim “Nemo Moriturus Praesumitur Mentire,” the bench noted that a person on their deathbed is unlikely to falsely implicate an innocent individual as "the man will not meet his maker with a lie in his mouth."

The bench further observed that while the court must be on guard against tutoring or prompting, there is no rule of law or prudence that a dying declaration cannot be acted upon without corroboration. The judges noted that the requirement for corroboration is merely a rule of prudence and not an absolute mandate, especially when the court is satisfied that the statement was true and voluntary.

"If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration."

Presence Of Magistrate Not Absolute Requirement

Addressing the appellant's contention that the declaration lacked significance because it wasn't recorded by a Magistrate, the Court relied on the Supreme Court's ruling in Purshottam Chopra v. State (Govt. of NCT Delhi). The bench clarified that the law does not prescribe a specific person who must record a dying declaration, nor does it mandate a specific format.

The Court noted that while it is expected to request a Magistrate to ensure higher credibility, the absence of one does not automatically render the statement unreliable. In the present case, the prosecution had successfully demonstrated that the police had attempted to call a Special Executive Magistrate (SEM) but were unable to secure their presence, justifying the recording by the API in the presence of a doctor.

"Just because the Dying Declaration is recorded by the API, it will not diminish its credibility which otherwise we find to be truthful."

Question-Answer Format Not Mandatory For Admissibility

The bench rejected the argument that the dying declaration should be discarded because it was not recorded in a question-answer format. Citing Ram Bihari Yadav v. State of Bihar, the Court held that the mere fact that a statement is not in a specific format cannot be a ground to challenge its reliability. What matters is the mental condition of the maker, their alertness, and whether the statement reflects their actual words.

The judges observed that the API had taken the necessary precaution of ensuring the victim was in a fit state of mind by seeking the doctor’s opinion both before and after recording the statement. The Court found that the surgeon’s endorsement regarding the patient being "conscious and well-oriented" was sufficient proof of her mental fitness to make a voluntary statement.

Consistency And Corroboration From Other Witnesses

The Court highlighted the absolute consistency between the written dying declaration and the oral statements made by the deceased to her maternal uncle and the owner of the brick kiln. Both witnesses testified that the deceased had narrated the same sequence of events immediately after the incident, specifically naming the mother-in-law as the assailant who poured kerosene and lit the matchstick.

The bench noted that the defense's theory of a stove explosion was not supported by any evidence. The spot panchnama revealed the presence of a kerosene can and matchsticks but no remnants of an exploded stove or any burst furnace. This lack of material evidence for the defense's version further solidified the prosecution's case based on the victim's statement.

"The Dying Declaration inspires confidence and has been made voluntarily."

The High Court concluded that the Trial Court had rightly appreciated the evidence and that the dying declaration was free from any tutoring or imagination. Finding no merit in the appeal, the bench upheld the conviction under Section 302 of the IPC. Consequently, the criminal appeal was dismissed, and the interim applications were disposed of.

Date of Decision: 23 June 2026