Anil Kumar vs State on 28 November, 2013
12. The learned Trial Court has very ably and comprehensively dealt with
the above contentions raised by both the counsel for the appellants in the
impugned judgment and we find no reason to record our disagreement with
the same. The learned Trial Court is right in observing that the said
statement of the victim Tirlok Chand proved on record as Ex. PW18/A was
in the nature of a complaint but even then ASI Balbir Singh-PW18 took a
precaution in first obtaining the opinion of the concerned doctor about the
fitness of the injured. The learned Trial Court also rightly observed that
there was no occasion for IO to record the dying declaration of the victim by
calling the Magistrate as there was no danger to the life of injured Tirlok
Chand and in the later period also no intimation was received by him that
injured was in any precarious or serious condition. The learned Trial Court
also rightly observed that it is only after the death of the Tirlok Chand that
his statement Ex. PW-18/A became the dying declaration. To support his
said reasoning, the learned Trial Court has relied on the decision of the
Apex Court in the case of Jai Prakash & Anr. v. State of Haryana, reported
CRL.A. Nos.456/1998, 481/1998 & 549/1998 Page 14 of 34
in 1987 AIR 2225 where in similar facts, the Apex Court took a view that in
the cases where the police had initially recorded the statement in the nature
of complaint, the same was later on treated as a dying declaration in case
victim dies, if it discloses the cause of death of the victim. The learned Trial
Court also observed that based on the said statement, FIR under Section 307
IPC was recorded and an endorsement to this effect was made by ASI on the
said statement of Tirlok Chand which was proved on record as Ex. PW-
18/B. The learned Trial Court is also right in observing that the only
precaution which IO could have taken was to record the statement of the
injured after he was declared fit for statement. After having taken the said
precaution, neither any fault nor any lapse can be attributed to the said ASI
nor can any dispute be raised to the veracity of the statement made by the
victim, Trilok Chand.