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Bhavanbhai Premjibhai Vaghela and Ors. Vs. State of Gujarat - (High Court of Gujarat) (30 Nov 2017)

For an FIR lodged by a deceased person to be treated as substantial, its contents must be proved

MANU/GJ/1951/2017

Criminal

By present application under Article 227 of the Constitution of India, the Applicants - original accused persons call in question the legality and validity of the order passed by the trial Court. The applicants are put on trial on the charge of murder. First Information Report was for the offence punishable under Sections 302, 147, 148, 149, 452, 504, 506(2) and 120B read with 34 of the Indian Penal Code, 1860 (IPC). Present application is preferred by 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.

Trial Court ought to have upheld the objection and should not have permitted the Investigating Officer to prove the contents of the First Information Report in the absence of the original first informant. Learned counsel submitted that, the contents of the First Information Report would be admissible in evidence only if Section 32 of the Evidence Act,1872 is applicable. According to the learned counsel, the statement in the F.I.R. does not relate to the cause of death of the first informant. Further, it was pointed out that indisputably, the first informant passed away on account of natural death.

The term 'First Information Report' has been explained in the Code of Criminal Procedure, 1973 by virtue of Section 154, which lays down that: "every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf".

F.I.Rs. can be registered by a victim, a witness or someone else with the knowledge of the crime. The police can record three different kinds of statements. The first kind of statement is one which can be recorded as an F.I.R., the second kind of statement is one which can be recorded by the police during the investigation, and the third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. Evidence is the matter of testimony manifesting the fact on a particular precision or circumstances. The First Information Report is not by itself a substantial piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32 of the Evidence Act.

In certain cases, the First Information Report can be used under Section 32(1) of the Evidence Act, 1872 or under Section 8 of the Evidence Act as to the cause of informant's death or as a part of the informant's conduct. If the informant dies, the First Information Report can be, unquestionably, used as a substantive evidence. A prerequisite condition must be fulfilled before the F.I.R. is taken as a substantive piece of evidence i.e. the death of the informant must have nexus with the F.I.R. filed or somehow having some link with any evidence regarding the F.I.R. This is what has been explained by the Supreme Court in the case of Damodar Prasad vs. State of U.P.

There are plethora of decisions taking the view that, an F.I.R. can be a dying declaration if the informant dies of his injuries after lodging the same. For an F.I.R. lodged by a deceased person to be treated as substantial, its contents must be proved. It has to be corroborated and proved for there to be any value of the same in the case. The F.I.R. can be used by the defence to impeach the credit of the person who lodged the F.I.R. under Section 154(3) of the Evidence Act. In case the death of the informant has no nexus with the complaint lodged i.e. he died a natural death and did not succumb to the injuries inflicted on him in relation to a matter, the contents of the F.I.R. would not be admissible in evidence. In such circumstances, the contents cannot be proved through the Investigating Officer. The Investigating Officer, in the course of his deposition, should not be permitted to depose the exact contents of the F.I.R. so as to make them admissible in evidence. All that is permissible in law is that the Investigating Officer can, in his deposition, identify the signature of the first informant and that of his own on the First Information Report and he can depose about the factum of the F.I.R. being registered by him on a particular date on a particular police station.

It is incorrect on part of the trial Court to say that, in the absence of the first informant, the police officer can prove the contents of the F.I.R. as per Section 67 of the Evidence Act. Present application is allowed and the impugned order passed by the trial Court below is quashed. The trial Court shall proceed further with the recording of the evidence of the Investigating Officer keeping in mind the principles of law explained in present judgment.

Relevant : Damodar Prasad vs. State of U.P. [AIR 1975 SC 757]

Tags : FIR   CONTENTS   PROOF  

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