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. 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 passed by the learned Sessions Court stating that since the death of the victim had occurred almost after a month after the incident, the learned Sessions Court was justified in discarding the dying declaration and not allowing the prosecution witnesses to be examined. In view of the same, he has prayed to reject the present revision application. 6. In view of the same, he has prayed to reject the present revision application. 6. Having heard learned advocate appearing for the respective parties and having gone through the material on record, it is pertinent to note that the learned Sessions Court has discarded the applicant to call the Executive Magistrate observing that the dying declaration would not be relevant, as the death of victim has occurred after a month from the date of incident. Therefore, as per the provisions of Section 32 of the Act, such document would not be considered relevant. However, when the provisions of Section 32 (1) of the Act are perused, it pertains to the issue of dying declaration. For ready reference, Section 32(1) of the Act is reproduced hereinafter:- "32.(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 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." 7. In recent decision of the Hon'ble Apex Court in the case of Rajendra S/o Ramdas Kolhe versus State of Maharashtra passed in Criminal Appeal No.2281 of 2011, it has been observed that a dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. In the instant case, there is no doubt in the mind of the Court that when the postmortem note as well as the corroborative evidence reflect that that the death has occurred due to the incident in question, it was not permissible for the learned Sessions Court to discard the importance witness, namely the Executive Magistrate, who has recorded the dying declaration. Further, the Court should not have discarded the relevant document itself by stating that it was not a relevant document under Section 32 of the Act. Further, the Court should not have discarded the relevant document itself by stating that it was not a relevant document under Section 32 of the Act. The relevant observations made by the Hon’ble Apex Court in the said decision are reproduced hereunder :- “26.1. Section 32 says that statements made by a person who is dead or who cannot be found etc., be it in written form or oral, are themselves relevant facts. As per situation(1), when the relevant facts relate to the cause of death, such a statement would be relevant whether the person who made it was or was not at the time of making the statement under expectation of death. Such a statement would be relevant whatever may be the nature of the proceedings in which the cause of his death comes into question. The relevancy is not confined to the cause of his death but also to the circumstances of the transaction which resulted in his death. 27. In Khushal Rao vs. State of Bombay, this Court examined the principles governing acceptance of dying declaration. After examining the relevant provisions of the Evidence Act and various judicial pronouncements, this Court laid down the following conclusions: (i) it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (ii) each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made; (iii) it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (iv) a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence; (v) a dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony whichmay suffer from all the infirmities of human memory and human character; (vi) in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties. 28. The above conclusions were reiterated by this Court in Paniben (Smt.) vs. State of Gujarat. This Court declared that there is neither any rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration. However, the court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination; the deceased should be in a fit and proper state to make the declaration. But once the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. 29. This Court highlighted the significance of a dying declaration in Kundula Bala Subrahmanyam vs. State of Andhra Pradesh. The general rule is that hearsay evidence is not admissible. Unless the evidence tendered is tested by cross-examination, it is not creditworthy. However, Section 32(1) of the Evidence Act is an exception to this general rule. This Court observed as under: 18. * * * * * A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. * * * 30. Elaborating further, this Court in Sher Singh vs. State of Punjab, held that acceptability of a dying declaration is greater because the declaration is made in extremity. When a party is on the verge of death, one rarely finds any motive to tell falsehood. It is for this reason that the requirements of oath and cross-examination are dispensed with in the case of a dying declaration. 31. In Sudhakar vs. State of Madhya Pradesh, this Court observed thus: 20. The “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. 32. When there are more than one dying declaration, this Court in Amol Singh vs. State of Madhya Pradesh, clarified that it is not the plurality of the dying declarations that matter. On the contrary, it is the reliability of a dying declaration which is significant. 32. When there are more than one dying declaration, this Court in Amol Singh vs. State of Madhya Pradesh, clarified that it is not the plurality of the dying declarations that matter. On the contrary, it is the reliability of a dying declaration which is significant. If there are inconsistencies between one dying declaration and the other, the court has to examine the nature of the inconsistencies, i.e., whether those are material or not.” 8. Further the role of the court while recording the evidence is also elaborated in the decision of the Hon'ble Apex Court in the case of Zahira Habibullah Sheikh versus State of Gujarat reported in 2006 (3) SCC 374 , wherein it has been observed in para 26' that the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. In the instant case, the learned Sessions Court has not provided any reasoning, other than stating that the document is not relevant, for discarding the important witness, the Executive Magistrate. The proximity of the dying declaration is wrong consideration vis-a-vis for non-issue of summons to Executive Magistrate. However, it was not permissible for the learned Sessions Court to disallow the prosecution witnesses to be examined on the reasons given in the impugned order. 9. In view of the above, the present revision application succeeds and is allowed accordingly. 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 is quashed and set aside. It is further noted as per the statement made by the learned Additional Public Prosecutor that the Executive Magistrate is the only witness who has remained to be examined. The same should be done by the learned Sessions Court at Tapi at the earliest to compete the trial. Rule is made absolute to the aforesaid extent. 10. The order of this Court be given to the learned Additional Public Prosecutor for onward communication. This order may also be communicated by the Registry to the concerned trial court by E-mail/fax today itself.