Dying Declaration cannot be ignored Just on the ground that it was recorded by an executive Magistrate.

Kritika Pandey | Maharaja Sayajirao University of Baroda | 23rd December 2019

Firoza & Ors v. State & Anr.

FACTS

• A message was received through telephone, that one lady had been set on fire by her in-laws at Welcome, Delhi. Sub-inspector (hereinafter SI) reached to the spot for further action. They found that injured was already taken to Hospital.
• The doctor on duty declared her ‘unfit for statement’. No eye-witness was found present at the hospital, SI on enquiry came to know that the injured has received burn injuries and she was married about 8 months ago to Sameer. Subsequently, the statement was recorded and after recording the statement of injured the FIR was registered under Section 498A read with Section 307 IPC.
• Thereafter, Accused Sameer, Husband of the deceased and Firoza mother-in-law of the deceased, Seema(sister-in-law of the deceased) and Shamsuddin were arrested.
• Statement of the witnesses were recorded and chargesheet was filed.Charges were framed under Section 498A, 304B, 302 and 34 IPC against all accused persons.
• Trial Court passed a Judgment and Order convicting all the appellants under Sections 498A/304B/302/34 IPC.

APPELANT CONTENTION

• Learned councel, said dying declaration alleged to be recorded does not show the mental fitness of the deceased as she was under trauma having been administered ‘Fortwin’ medication.
• The Ld. Counsel further submitted that the deceased statement could not be recorded as the doctor had declared her “unfit for statement” so that her fitness condition would have further deteriorated. He relied upon Judgment in Sampat Babso Kale & Anr. v. Sate of Maharashtra (2019) SCC Online SC 498, in this behalf.
• Learned Counsel has submitted that the dying declaration recorded by Executive Magistrate is shrouded with suspicion as he is not the Judicial Magistrate as per the Chapter-13A of the Delhi High Court Rules.

RESPONDENT CONTENTION

• The deceased was admitted to Hospital and was administered ‘Fortwin’. Whereas, dying declaration was recorded by, Executive Magistrate on the next day obtaining patient fit for statement opinion from Doctor on Duty.
• The Chapter-13A of the Delhi High Court Rules, dying declaration has to be recorded by a Judicial Magistrate, loses its significance as the statement of the deceased was recorded by Executive Magistrate, on receiving the burn injuries and the deceased died subsequently due to the burn injuries and the said statement of the deceased subsequently became dying declaration, which is trustworthy and inspires confidence. Reliance is placed on Judgment of Apex Court in Laxman v. State of Maharashtra AIR 2002 SC 2973.

HELD

• The Trial Court has rightly convicted the accused persons under Sections 498A/304B/302/34 IPC. We find no merit to interfere with impugned Judgment and Order on Sentence.
• As such appeals are dismissed.