Bombay High Court
Ramesh Wamanrao Babhulkar
Versus
State of Maharashtra
Decided On:

Headnote:Sections 207, 161 and 162-Evidence Act, 1872, Section 32-AccusedHe is entitled to get copies of all statements and dying declarations.

       [Held; under Section 207, Criminal Procedure Code, where the proceedings are instituted on a police report, the Magistrate is bound 10 supply free of cost of copy of-(1) the police report; (2) the first information report, recorded under Section 154; (3) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes 10 examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the Police Officer under sub-section (6) of Section 173.

       The accused is entitled to have the copies of all the statements of witnesses for prosecution recorded under Section 161, Criminal Procedure Code, even if that particular statement is not being relied upon by the prosecution, it being unfavourable to the prosecution.

       Insofar as the dying declarations are concerned, the same principle will apply, beca1lse it is also a statement of a witness recorded during the course of .the investigation. It is quite irrelevant that the witness should have died after making a dying declaration. A dying declaration has been specifically excepted from the operation of bar under Section 162, Criminal Procedure Code.

       Therefore, a dying declaration can be used against the accused, without a bar under Section 162 being affected. Where a statement of a witness against the use of which there is a specific bar has to be supplied to the accused on his demand, it is unthinkable that a dying declaration which is without any such bar can be kept from the accused.

       If such a dying declaration is recorded during investigation and is kept back from the accused, merely because it helps the accused, to deny the copy thereof to him for the purposes of defence would be highly prejudicial to him. The said dying declaration, if existing on record, would undoubtedly provide a material to the defence to effectively cross-examine regarding the nature of investigation. Even the Investigating Officer could be subjected to a cross-examination on the basis of such dying declaration. Apart from that, such dying declaration could be used for unearthing the truth of the prosecution story, because it might affect the evidentiary value of the other dying declarations on account of the contradictions. Under such circumstances, it will not be fair to deny the copy of the dying declaration to the accused on the specious ground that it forms a part of the case-diary. If such dying declaration is proved to be in existence it will be the right of the accused to have the copy thereof. The trial Court was, therefore, in error in not establishing as to whether such dying declaration exists or not. It has already been pointed out that there is no denial that there are no such dying declarations. The impugned order is, therefore, clearly incorrect and will have to be set aside.

       Section 32 - Accused-Be entitled to get copies of all statements and dying declarations.

       [Held; under Section 207, Criminal Procedure Code, where the proceedings are instituted on a police report, the Magistrate is bound to supply free of cost of copy of-(1) the police report; (2) the first information report, recorded under Section 154; (3) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police Officer under sub-section (6) of Section 173.

       The accused is entitled to have the copies of all the statements of witnesses for prosecution recorded under Section 161, Criminal Procedure Code, even if that particular statement is not being relied upon by the prosecution, it being unfavourable to the prosecution.

       Insofar as the dying declaration are concerned, the same principle will apply, because it is also a statement on a witness recorded during the course of the investigation. It is quite irrelevant that the witness should have died after making a dying declaration. A dying declaration has been specifically excepted from the operation of bar under Section 162, Criminal procedure Code.

       Therefore, a dying declaration can be used against the accused, without a bar under Section 162 being affected. Where a statement of a witness against the use of which there is a specific bar has to be supplied to the accused on his demand, it is unthinkable that a dying declaration which is without any such bar can be kept from the accused.

       If such a dying declaration is recorded during investigation and is kept back from the accused, merely because it helps the accused, to deny the copy thereof to him for the purposes of defence would be highly prejudicial to him. The said dying declaration, if existing on record, would undoubtedly provide a material to the defence to effectively crass-examine regarding the nature of investigation. Even the Investigating Officer could be subjected to a cross-examination on the basis of such dying declaration. Apart from that; such dying declaration could be used for unearthing the truth of the prosecution story, because it might affect the evidentiary value of the other dying declarations on account of the contradic1ions. Under such circumstances, it will not be fair to deny the copy of the dying declaration to the accused on the specious ground that it forms a part of the case diary. If such dying declaration is proved to be in existence it will be the right of the accused to have the copy thereof. The trial Court was, therefore, in error in not establishing as to whether such dying declaration exists or not. It has already been pointed out that there is no denial that there are no such dying declarations. The impugned order is, therefore, clearly incorrect and will have to be set aside.

       For Citation : (1996) 1 B Cr C 84 at pp. 88, 89, 90