J.B. Pardiwala JUDGMENT
J.B. Pardiwala, J.
1. Rule returnable forthwith. Mr. Dharmesh Devnani, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the State of Gujarat.
2. By this application under Article 227 of the Constitution of India, the applicants - original accused persons call in question the legality and validity of the order dated 15th November 2017 passed by the 5th Ad-hoc Additional District and Sessions Judge, Surendranagar below Exhibit: 130 in the Sessions Case No. 53 of 2014.
3. The facts giving rise to this application may be summarised as under:
3.1 The applicants before me are put on trial on the charge of they having committed murder. It appears that one Muljibhai alias Bhim Makwana lodged a First Information Report at the Thangadh Police Station, District: Surendranagar bearing I-C.R. No. 0036 of 2013 for the offence punishable under Sections 302, 147, 148, 149, 452, 504, 506(2) and 120B read with 34 of the Indian Penal Code.
4. I need not discuss the case of the prosecution, as I am called upon to answer a neat question of law.
5. It appears that when the trial commenced, the original first informant namely Mulji alias Bhim Makwana was no more. During the pendency of the trial, he passed away. It was a natural death. After examination of almost thirty witnesses by the prosecution, ultimately, in the last, the Investigating Officer stepped into the box. While the evidence of the Investigating Officer was being recorded, he deposed that Mulji alias Bhim Makwana had come to the police station and lodged a First Information Report as regards the murder of his nephew namely Kanubhai. The Investigating Officer, thereafter, proceeded to depose the exact contents of the entire F.I.R. At that stage, the defence counsel raised an objection stating that it is not permissible in law for the Investigating Officer to prove the contents of the F.I.R. if the first informant is dead. The defence counsel pointed out to the Trial Court that all that the Investigating Officer can depose is with regard to the signature of the first informant, his own signature on the First Information Report and the fact that on a particular date, the First Information Report was taken down and registered. Nothing beyond this can be deposed by the Investigating Officer.
6. It appears that the objection was overruled by the Trial Court. In such circumstances, the defence filed an application Exhibit: 130. The application Exhibit: 130 came to be adjudicated by the Trial Court and by order dated 15th November 2017, the same was rejected. The order passed by the Trial Court reads as under:
"Order below Ex-130
In
Sessions Case No. 53/2014.
1. Read the application. Present application is preferred by Ld. advocate for accused No. 1 to 4 for raising objection against narrating the facts of complaint/FIR by PW-31 in his deposition and further not to admit the original complaint in the record by exhibiting the same.
2. Ld. Advocate Mr. Bharadwaj argued that PW-3l is the PI who at the relevant point of time write down the information give by informant/complainant. In the present case the informant is died during the trial and hence the prosecution "could not procure his evidence. The Original complaint was given by complainant to PW-31, hence the contents of the complaint are to be termed as hearsay evid........