ISHWAR GANPAT MACHHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD the learned counsel appearing on behalf of the Appellant and the learned APP for the State. The Appellant has filed this appeal being aggrieved by the judgment and order dated 17.10.2006 passed by the Sessions Judge, who was pleased to convict the Appellant for the offence punishable under Section of the Indian Penal Code and was pleased to sentence him to suffer imprisonment for life and to pay fine of Rs. 1,000/ - and, in default, to undergo rigorous imprisonment for six months. The Appellant was also convicted for the offence punishable under Section of the Indian Penal Code and sentenced to undergo imprisonment for six months and to pay fine of Rs. 200/ - and, in default, to undergo rigorous imprisonment for one month. Both the sentences were directed to run concurrently.

(2.) BRIEF facts are as under: -

(3.) SHRI Gangal, the learned Senior counsel appearing on behalf of the Appellant submitted that the prosecution had relied only on the dying declaration which was recorded by the investigating officer and which was allegedly made in the presence of the Special Executive Magistrate. He submitted that though the investigating officer had an ample opportunity to record the dying declaration through an Executive Magistrate, he had chosen to record it in the presence of the Executive Magistrate. He submitted that, therefore, the procedure followed by the investigating officer of recording the dying declaration was patently illegal and, therefore, no reliance could be placed on the said dying declaration. Secondly, he submitted that there were inherent infirmities in the said dying declaration. He submitted that in the dying declaration, the deceased stated that she was pregnant by three months. It is stated that this fact was neither established by the doctor, who performed the post -mortem nor by any other witnesses viz. the parents of the deceased. He then submitted that the second infirmity in the dying declaration was that it was mentioned in the dying declaration that her first statement was recorded by the police in which she had stated that her saree had caught fire on the stove and that statement was made since her husband had threatened her and being afraid, she had given the said statement. It is submitted that since the so called first statement was not produced on record by the prosecution and was not before the Court, an adverse inference ought to have been drawn by the Trial Court on account of suppression of the first dying declaration. It was then submitted that the endorsement of the doctor was made not at the bottom or at the top of the dying declaration but it appears to have been taken after the statement was recorded and therefore, it creates a doubt about the authenticity of the said endorsement. The learned counsel for the Appellant has relied on the two judgments of the Apex Court in support of his submissions viz. in the case of Arjun Prajapati v. State of Bihar and others ( : (2001) 9 SCC 252) and in the case of Dalip Singh and others v. State of Punjab ( : (1979) 4 SCC 332) : (AIR 1979 SC 1173). Lastly, it was submitted that the prosecution has not produced the letter which was written to the Special Executive Magistrate, asking him to remain present for the purpose of recording the dying declaration. It is submitted that all these infirmities are fatal to the prosecution case and on that ground, the order of conviction is liable to be set aside and quashed.