STATE OF GUJARAT Vs. TEJALBEN RAJENDRABHAI MOTILAL JAIN

JUDGEMENT

(1.) The present application is filed under Sec. 397 read with Sec. 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") challenging the legality and validity of the order dtd. 2/5/2022 passed below Exhibit '31' by the learned Principal District and Sessions Judge, Tapi at Vyara in Sessions Case No.12 of 2022.

(2.) It is the case of the prosecution that complainant, namely Rajendra Motilal Jain has registered his complaint on 20/5/2020 vide FIR No.11824004200563 of 2020 for the offences punishable under Ss. 302 and 307 of the Indian Penal Code (hereinafter referred to as "the IPC"). Initially, the complaint pertained to Sec. 307 of the IPC. However, after span of a month of the incident, the victim passed away, which led to the addition of Sec. 302 of the IPC. During the investigation, the dying declaration of the victim was recorded by the Executive Magistrate on 20/5/2020. Subsequent to the investigation, the charge-sheet came to be filed on 20/8/2020, which resulted in the criminal case being Sessions Case No.12 of 2020 before the learned Principal District and Sessions Judge, Tapi at Vyara. During the course of trial, learned In- charge Public Prosecutor filed an application dtd. 2/5/2022 seeking permission from the Court to call upon prosecution witness No.26, Mr. D. M. Shah, who was the Executive Magistrate, as the witness in the case. By way of impugned order dtd. 2/5/2022, the learned Sessions Court was pleased to reject the application observing that the dying declaration was recorded by the Executive Magistrate on 2/5/2020 and the death of the victim was after almost a month, i.e. 19/6/2020 which would result in dying declaration being not considered as the relevant document as per Sec. 32 of the Indian Evidence Act, 1972 (hereinafter referred to as "the Act"). With the above mentioned observation, the application preferred by the In- charge Public Prosecutor came to be rejected which has resulted in filing of the present revision application.

(3.) Heard Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the applicant and Mr. Hiren M. Modi, learned advocate appearing for the respondent.