Effect Of Magistrate's Deposition In Favour Of Dying Declaration Can Be Eroded Only By An Efficacious Cross-Examination: Punjab & Haryana HC

The Punjab and Haryana High Court recently held that the effect of a Magistrate's deposition in favour of a dying declaration can be eroded only when an efficacious cross-examination is conducted.

The observation was made by a bench comprising Justice Sureshwar Thakur and Justice N.S.Shekhawat while dealing with an appeal against conviction for offence of Murder. The conviction was based on the victim's dying declaration.

At the outset, the Court observed that the dying declaration was recorded by a Judicial Magistrate First Class, after the doctor certified that the victim was in a fit mental state to do so. The victim had named the accused and put the right foot impression of her toe.

The above facts were "unequivocally deposed" by the Magistrate during his cross-examination.

"The effect of the making of the above deposition by the judicial officer, who recorded the dying declaration of Lakhwinder Kaur, is that, not only proof has emanated in respect of the fit mental condition, at the relevant time, of the declarant concerned, but also proof has emanated, with respect to the authenticity of the contents carried thereins, conspicuously when the same has been provenly signatured by the Judicial Magistrate concerned," the Court held.

"Be that as it may, the effect of the above deposition, could but may have been eroded, but only when an efficacious cross-examination became conducted, upon PW-1 (PW-8) [Magistrate]."

The court further noted that the prosecution has been able to unflinchingly prove the charge, as drawn against the accused. Since the original of the dying declaration was placed on record, therefore, it comprises the apt primary evidence against the accused and the proven dying declaration does constitute a potent incriminatory evidence against the accused since it has been corroborated by statement, made by accused and the post-mortem report.

Consequently, the court dismissed the appeal.