KAMALAKAR NANDRAM BHAVSAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants before us were charged for offences punishable under Ss. 306 and 498-A read with S. 34 of the Indian Penal Code. The trial Court relying on an alleged dying declaration said to have been made by the deceased acquitted the appellants of all charges. In appeal the High Court of Judicature at Bombay by the impugned judgment has set aside the said judgment of acquittal and convicted the appellants for offences punishable under S. 306, I.P.C. and directed them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- each in default of fine to undergo further rigorous imprisonment for a period of one year. It also convicted the appellants for the offence punishable under S. 498-A of I.P.C. and sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- each in default of payment to undergo rigorous imprisonment for six months. It further directed the substantive sentences to run concurrently.

(2.) Prosecution case briefly stated is as follows :

(3.) During the course of trial, something peculiar happened, notice of which was taken by the High Court. It was not the case of the prosecution that the deceased had made any dying declaration but the doctor (P.W. 5), who conducted the post-mortem, when in the witness-box, replied to a question which was posed to him during the cross-examination stating that a dying declaration was made by the deceased when she was in the hospital. Even though this doctor was not the doctor treating the patient, the said doctor answered the said question by admitting the suggestion made on behalf of the accused that the deceased had made a dying declaration. At that stage, on behalf of the defence an application Ext. 39 was made calling upon the prosecution to produce the said dying declaration which was allegedly made by the deceased on 28th of April, 1986. On 26th of November, 1986, a dying declaration marked as Ex. 40 was admitted into the evidence by the learned trial Judge, the source of production of this document is neither mentioned in the judgment of the trial Court, nor any evidence was led as to the proof of this document. The trial Court in its judgment brushing aside all the evidences led by the prosecution relying on the so-called dying declaration acquitted the accused persons of all the charges framed against them.