Latest JudgementIndian Penal Code, 1860Indian Evidence Act, 1872

Basharat Ahmad Abbasi @ Bashir v. Union Territory of Jammu & Kashmir & Others, 2026

Mobile Phone Dying Declaration Held Admissible Under Section 32(1); Jammu & Kashmir High Court Denies Bail in Murder Case

High Court of Jammu & Kashmir and Ladakh·15 May 2026

Court

High Court of Jammu & Kashmir and Ladakh

Date of Decision

15 May 2026

Judges

Justice Sanjay Dhar

Citation

Acts / Provisions

Section 302, Indian Penal Code Section 120-B, Indian Penal Code Section 32(1), Indian Evidence Act, 1872

Facts of the Case

The case arose from the death of Mohammad Syed Abasi, who was found unconscious on 24.01.2020 and later declared dead at the hospital.
Postmortem examination revealed that the cause of death was poisoning, leading to registration of an FIR under Section 302 and 120-B IPC.
Investigation revealed that the deceased had a love affair with Zahida Bano, which was opposed by her family members.
It was alleged that the accused, including the petitioners, conspired to murder the deceased.
The deceased allegedly consumed poison mixed in tea, which was given to him under the false assurance of marriage.
Before his death, the deceased contacted PW Altaf Hussain and requested him to record a conversation identifying the accused as responsible for his condition.
The recorded conversation was stored on a mobile phone and seized by police.
The mobile recording was sent to CFSL, which confirmed that there was no editing or tampering in the audio.
The petitioners were in custody for over five years and sought bail on the ground of inconsistencies in forensic evidence and prolonged incarceration.

Whether a mobile phone recording made by the deceased shortly before death constitutes a valid dying declaration under Section 32(1) of the Indian Evidence Act?
Whether such electronic dying declaration is admissible and reliable at the stage of bail proceedings?
Whether minor contradictions in witness statements can be evaluated in detail while deciding a bail application in a murder case?
Whether alleged inconsistencies in forensic evidence weaken the prosecution case at the stage of bail?
Whether prolonged incarceration without final disposal of trial entitles the accused to bail in offences under Section 302 IPC?

The High Court dismissed the bail application filed by the petitioners.
The Court held that the mobile phone recording of the deceased, made shortly before death and certified by CFSL as unedited, constitutes a valid and admissible dying declaration under Section 32(1) of the Evidence Act.
The Court observed that statements made by the deceased immediately before death regarding the circumstances of his death are admissible in evidence.
The Court found that witness statements of PW Altaf Hussain and PW Mohammad Rafiq prima facie supported the prosecution version.
The Court noted that the deceased had specifically named the petitioners during the recorded conversation.
The Court held that at the stage of bail, it is not permissible to undertake a detailed appreciation or contradiction analysis of witness statements.
The Court observed that alleged inconsistencies in forensic evidence, including differences in types of poison, were matters for trial and not relevant at the bail stage.
The Court found that the delay in trial was largely attributable to the COVID-19 pandemic and not to prosecutorial or judicial delay.
The Court held that the right to speedy trial had not been violated in the facts of the case.
The Court directed the trial court to expedite the proceedings.

A mobile phone recording of a deceased person made immediately before death can constitute a valid dying declaration under Section 32(1) of the Evidence Act, if proven to be unedited and authentic.
Minor contradictions in witness statements cannot be examined in detail at the bail stage.
Forensic discrepancies are matters for trial and not grounds for bail in serious offences.
No violation of the right to speedy trial was found in the present case.
Bail was rejected.

The judgment reinforces the expanding evidentiary acceptance of electronic dying declarations in Indian criminal jurisprudence.
By relying on CFSL certification, the Court strengthens the role of forensic authentication in digital evidence.
The ruling aligns with settled principles that bail proceedings cannot become mini-trials, especially in offences under Section 302 IPC.
The Court correctly distinguished between admissibility of evidence and its probative value, reserving detailed evaluation for trial.
The decision underscores the broad interpretation of Section 32(1) Evidence Act, which includes statements made by a deceased regarding the cause of death.
The judgment also reflects judicial caution in granting bail in cases involving prima facie strong incriminating material.
The Court balanced the right to liberty with the seriousness of allegations, prioritising the gravity of offence.
The ruling clarifies that COVID-19 related delays cannot automatically justify bail when trial has otherwise progressed.
The decision strengthens prosecutorial reliance on digitally recorded dying declarations in homicide cases.