Gujarat High Court
State Of Gujarat vs Maheshbhai Iswarbhai Patel on 4 April, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.RA/676/2020 ORDER DATED: 04/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 676 of 2020
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STATE OF GUJARAT
Versus
MAHESHBHAI ISWARBHAI PATEL
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Appearance:
MR HARDIK SONI, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 04/04/2024
ORAL ORDER
1. State has filed this revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 challenging an order passed below Exh.203 passed by 6th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur dated 03.01.2020 in Sessions Case No.57 of 2013, whereby request made by learned Special Public Prosecutor permitting Prosecution Witness No.19-Gordhanbhai Narsinhbhai Parmar, the then ASI in presence of whom first informant gave his first information, which was taken down by his writer to read- out the contents of the FIR to be stated in his deposition, came to be refused.
2. Heard Mr.Hardik Soni, learned APP for the State. He has submitted that there were two injured witnesses out of which one has passed away before he is examined before the court and the first informant, who has died subsequently. Therefore, according to his submission and the prayer made by the learned Special Public Prosecutor at the trial the contents of FIR are required to be deposed to by the witness before whom it was given. Though FIR is given an exhibit despite objection by the defence, he has submitted that once the injured Page 1 of 3 Downloaded on : Fri Apr 05 22:00:14 IST 2024 NEUTRAL CITATION R/CR.RA/676/2020 ORDER DATED: 04/04/2024 undefined has died, who had given an FIR, it becomes a dying declaration and therefore, witness is required to state the contents of the FIR in his deposition. Therefore, he has submitted that this revision application be admitted and allowed.
3. Having heard learned APP and going through the impugned order as also the deposition of the Prosecution Witness No.19-Gordhanbhai Narsinhbhai Parmar before whom injured first informant gave his information and he got it recorded through his writer, the application Exh.203 and the impugned order passed by the trial court, it emerges that proving contents of the FIR when first informant has died, according to the learned Special Public Prosecutor, appears to be misconceived.
4. Once the document even if it is to be treated as a dying declaration if it satisfies requirements of Section 32 of the Indian Evidence Act, 1872 (for short "the Evidence Act") witness before whom the FIR is given cannot depose to what first informant stated in his presence. Therefore, request made by learned Special Public Prosecutor that the witness before whom first information given by the informant is obliged to prove the contents of his information is not permissible. The ground on which the learned Special Public Prosecutor wants the witness to state the contents of the FIR in his deposition stated in his application that mere exhibiting a document contents cannot be said to be proved is also again a misconception. If any document is to be treated as a dying declaration at the trial if it satisfies all the necessary conditions mentioned in Section 32 of "the Evidence Act" the document itself can be read into an evidence because it is exception to a rule of hearsay evidence without cross- examination of the maker of it.
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5. Prosecution Witness No.19 is a Police Officer, who at best can refresh his memory while giving deposition before the Court as stated in Section 159 of "the Evidence Act" discussed by the learned Judge in paragraph no.4 of the impugned order. The said act of refreshing memory is with regard to the steps taken by him during the course of investigation and nature of it, which can be refreshed by him based on a note prepared by him at the time of investigation and therefore, he cannot be permitted to prove contents of first information, which was recorded in his presence by his writer, maker of a document, who has died.
6. In that view of the matter, there is no illegality or irregularity committed by the learned Judge while rejecting the application Exh.203. Hence, this revision application being misconceived, it is hereby rejected.
Sd/-
(UMESH A. TRIVEDI, J) ABHISHEK Page 3 of 3 Downloaded on : Fri Apr 05 22:00:14 IST 2024