The claimants are also relying on statement
of respondent no.01 dated 10072014 recorded by
police. The said statement appears to be part of
chargesheet of which certified copy had been
produced. The said statement has been taken as
statement of the accused and therefore, for criminal
case, it may not be admissible in evidence. As
regards civil case is concerned, no doubt, the
question arises as to whether in absence of
examination of the person who had recorded it,
whether it can be read in evidence, that too, without
deciding whether certified copy of such statement can
be read in evidence. It appears that from this
angle, submissions were not made before the Tribunal.
Even if for the sake of arguments, we take the said
statement as it is, in which it was stated by
respondent no.01, that due to the dash of his
motorcycle to the motorcycle driven by deceased,
deceased as well as his pillion rider fell down;
statement is made that after they had sustained
injuries, he immediately asked Ratnakar and Ganesh,
as to what is their name and then came to know about
their names and then he had called some other persons
and made arrangements for medical help. That means,
he intended to say that Ratnakar as well as Ganesh
were conscious when he made enquiries with them.
This is contrary to what has been stated in the FIR.
In the FIR, it is stated that after they fell down
from the motorcycle after the dash, they had raised
hue and cry; however, motorcycle rider did not stop
and fled away. Under such circumstance, how the
claimants can rely on his statement, is a question,
rather it gives an example as to how the vehicle
belonging to respondent no.02 has been involved in
the case. Ultimately, respondent no.01 says that he
will not be able to say how the accident took place
and who was at fault. Therefore, the alleged
connection between the medical examination of
respondent no.01 and the accidental injuries caused
due to the accident, cannot be said to have been
established merely by producing the injury
certificate as well as statement of respondent no.01
taken by police. The police head constable who had
taken his statement, has not been examined by the
claimants for the reasons best known to them. {Para 11}
12. The chargesheet also contains statement of
respondent no.02 which is alleged to have been taken
on 07-07-2014, who has echoed thereafter with
claimant no.03 Ganesh and then has stated that
respondent no.01 had carried out repairs to his
motorcycle and then handed it over to respondent
no.02. Again, at the cost of repetition, it can be
said that without examining the said police constable
who had recorded statement of respondent no.02, his
statement cannot be considered. This is with the
fact, that in their written statement, respondents
no.01 and 02 have clearly denied involvement of the
motorcycle bearing no. MH17/AY9996 in the said
accident.
13. Again, coming to the point regarding delay
in lodging the FIR, it can be seen that the fact of
death of Ratnakar was informed to police and
thereafter enquiry under Section 174 of the Code of
Criminal Procedure was conducted wherein the inquest
panchanama was carried out and then the dead body was
sent for post mortem. Important point to be noted is
that when on that day i.e. on the day when inquest
panchanama was prepared, there was an opportunity to
the claimants or on behalf of them, FIR could have
been lodged against unknown vehicle. Same has not
been done. Whatever FIR has been lodged on 23-04-
2014, is also against unknown person. Therefore,
this clear delay in lodging the FIR and then not
examining the police constable who had recorded the
statements of respondents no.01 and 02 or the
Investigation Officer, is required to be viewed
against the claimants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 0186 of 2019
Kavita Ratnakar Ghodke, Vs Sandip Sarjerao Jadhav,
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 15TH JULY 2019.
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