Dying declarations are admissible as evidence and retain significant weight, even if there is a time lapse between the declaration and the victim's death.

JUDGMENT :

1. The present application is filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") challenging the legality and validity of the order dated 02.05.2022 passed below Exhibit '31' by the learned Principal District & 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 20.05.2020 vide FIR No.11824004200563 of 2020 for the offences punishable under Sections 302 and 307 of the Indian Penal Code (hereinafter referred to as "the IPC"). Initially, the complaint pertained to Section 307 of the IPC. However, after span of a month of the incident, the victim passed away, which led to the addition of Section 302 of the IPC. During the investigation, the dying declaration of the victim was recorded by the Executive Magistrate on 20.05.2020. Subsequent to the investigation, the charge-sheet came to be filed on 20.08.2020, 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 dated 02.05.2022 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 dated 02.05.2022, the learned Sessions Court was pleased to reject the application observing that the dying declaration was recorded by the Executive Magistrate on 02.05.2020 and the death of the victim was after almost a month, i.e. 19.06.2020 which would result in dying declaration being not considered as the relevant document as per Section 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.

4. Mr. Soaham Joshi, learned Additional Public Prosecutor has submitted that the trial court ought to have considered the application made by the In-charge Public Prosecutor, as the dying declaration is an important piece of evidence. It was further submitted that the Executive Magistrate has recorded the declaration on 20.05.2020, which was day after the incident i.e. on 19.05.2020. The learned trial court ought not to have discarded such important piece of evidence by observing about the relevancy of the document at the stage of issuance of witness summons. It was further submitted that the learned Sessions judge has materially erred in not considering the fact that the reason of death was due the injury which has taken place on 19.05.2020. This could be verified from the postmortem note when the dying declaration was recorded pursuant to the incident in question. Therefore, it was imperative on the part of the learned Sessions Judge to consider the dying declaration as well as the recording of prosecution witness No.26 being executive witness. It was further submitted by Mr. Joshi, learned Additional Public Prosecutor relying on the report dated 27.03.2025 by the Police Inspector, Songadh Police Station that almost all the witnesses in the trial have been examined. However, the prosecution has not filed its closing pursis, as the Executive Magistrate is yet to be examined as a result of pendency of present revision application. It was further submitted that the next date of trial is on 29.03.2025. In wake of such submission, Mr. Joshi, learned Additional Public Prosecutor has requested to consider and allow the examination of prosecution witness No.26.

5. Per contra, Mr. Hiren M. Modi, learned advocate for the respondent has tried to justify the order pass