BALU DAMU BHALERAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. Rule made returnable forthwith. By consent of the parties, the Petition is taken up for final hearing.

(2.) BY this Petition, the petitioner impugns order dated 20.1.2010 rendered by learned Sessions Judge, Jalgaon in Sessions case No.191 of 2006.

(3.) IT is an admitted fact that though the statement vide exh. 48 was recorded by the Executive Magistrate as dying declaration yet P.W. Fakira being alive, now it is not at all admissible in evidence. The simple reason is that it does not come within the ambit of section 32(1) of the Evidence Act inasmuch as it does not refer to the transaction pertaining to the circumstances relevant to the death of the person. Section 31(1) of the Evidence Act, 1872 is as follows:- "Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-