(1) CRI. WP. 523.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 523 OF 2010 Shri Balu Damu Bhalerao Age : 36 years, Occu.: Agriculture, R/o- Vivare Khurd, Taluka Raver, Dist. Jalgaon PETITIONER VERSUS The State of Maharashtra (Through Nimbhora Police Station, Taluka Raver, Dist. Jalgaon) (Notice to be served on the Additional Government Pleader, High Court, Bench at Aurangabad) RESPONDENT ..... Mr. M.M. Bhokarikar, Advocate for the Petitioner. Mr. P.P. More, A.P.P. for the respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 6TH DECEMBER, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith. By consent of the parties, the Petition is taken up for final hearing. 2. By this Petition, the petitioner impugns order dated 20.1.2010 rendered by learned Sessions Judge, Jalgaon in Sessions case no. 191 of 2006. (2) CRI. WP. 523.2010 3. The matter lies in a short compass. The prosecution examined P.W.1 Fakira, who was injured during course of incident and is the victim. He was shown the statements recorded by the Executive Magistrate (Ex. 48) and the statement recorded by the Police. Statement (Ex.48) and Police Statement (Ex. 49) were recorded in the form of dying declaration and under section 161 of the Code of Criminal Procedure respectively and were objected by the applicant (accused). The applicant gave an application (Ex. 64) requesting the learned Sessions Judge, to de-exhibit both the said statements on the ground that they were not admissible in the evidence. The learned Sessions Judge rejected the application for the reason that there is no provision for de- exhibiting any document. 4. Heard learned Advocate for the petitioner and learned A.P.P. for the State. 5. It is an admitted fact that though the statement vide exh. 48 was recorded by the Executive Magistrate as dying declaration yet P.W. Fakira being alive, now it is not at all admissible in evidence. (3) CRI. WP. 523.2010 The simple reason is that it does not come within the ambit of section 32(1) of the Evidence Act inasmuch as it does not refer to the transaction pertaining to the circumstances relevant to the death of the person. Section 31(1) of the Evidence Act, 1872 is as follows:- Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at (4) CRI. WP. 523.2010 the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 6. Thus, a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction are resulted in his death may be relevant. However, when the person is alive, such a statement falls outside the ambit of section 32(1) and is not relevant at all. 7. So far as statements recorded by the Police during investigation are concerned, the limitations for use of such statements are succinctly clear on bare perusal of section itself. Such statement cannot be used for the purpose of corroboration of the testimony of such witness. It could be used only for the purpose of contradiction when the witness is confronted with the particular contradiction as enumerated in section 145 of Code of Criminal Procedure. It is manifestly clear that both the statements were not admissible in evidence and therefore, ought to be excluded from consideration. (5) CRI. WP. 523.2010 The learned Sessions Judge utterly failed to notice that giving exhibit number to a document is only a ministerial act and has nothing to do with its admissibility or relevancy of a document. The reasons ascribed by the learned Sessions Judge in the cryptic order, impugned herein are totally incorrect, improper and illegal. 8. In the result, the Petition is allowed. The impugned order is set aside. The statements of P.W. Fakira as shown vide exhibit number 48 and 49 shall be omitted from consideration and may be de-exhibited as sought. Rule made absolute accordingly. Sd/- [V. R. KINGAONKAR, J.] arp