JAGDEO VITHAL DHAGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for murder of one - Himmat, who was husband of original accused No. 2 - Deokabai for offence under section302 of I. P. C. THE learned Sessions Judge, Washim in Sessions Trial No. 62/1995 vide his judgment and order dated-5-2-1996 acquitted the original accused no.2. However, the appellant was convicted for offence under section302 of I. P. C. and was sentenced to imprisonment for life and to pay fine of Rs. 500/- in default to undergo R. I. for two months. THE appellant has challenged in this appeal the judgment of conviction and sentence passed against him.

(2.) THE incident which gave rise to this prosecution against the appellant took place on26th April, 1995 at village - Belmandal, Tahsil Karanja, which comes under Police Station - Karanja at midnight. THE victim - Himmat, since deceased was husband of original accused no.2 Deokabai. THEre was illicit relation between the original accused no.2 - Deokabai and the present appellant. THE deceased came to know about it and therefore, the appellant and the original accused no.2 committed his murder on the night of 25-4-1995. THE fact of assault on Himmat was reported to Police Station, Karanja by the Village Kotwal Ukanda Devange (P.W.3 ). He also informed that the victim was lying in an injured condition in his courtyard and he was insisting for taking him to hospital. In respect of that information, station diary entry came to be made vide exhibit 41 at6. 00 a. m. P. S. I. Rajput rushed to the spot and recorded statement of injured Himmat in the presence of Panchas and witness - Gulab (P. W.1) was one of the panchas. In his statement - Exhibit 14 he has stated that at the night of 25-4-1995 when he was sleeping in his courtyard, at about12. 00 to 1. 00 appellant - Jagdeo came to his courtyard and pressed his mouth and inflicted knife blows on his abdomen, chest and arm. He raised shouts and neighbourers on hearing his shouts reached to the spot, but then the appellant - Jagdeo ran away from the spot. After recording his statement he was removed to the hospital at Karanja for treatment. However, he succumbed to the injuries after a short while, P. S. I. Rajput registered offence under section302 of I. P. C. against the appellant vide C. R. No. 82/1995.

(3.) WE have heard Mr. Daga, learned counsel for the appellant and Mr. Loney, learned A. P. P. for the respondent - State. With the assistance of the learned counsel Mr. Daga was have gone through the evidence of witnesses on which the prosecution has placed reliance and further the trial court accepted the same. It goes without saying that unfortunately the prosecution could not lay its hands on direct evidence i. e. obviously for the reason that the incident of assault on victim took place almost at midnight. That is why the prosecution case hinges on circumstantial evidence which consists of mainly - dying declaration - Exhibit 14 and oral dying declaration made by victim to witness- Puranbi and Ukanda (P.W.3 ). It is not disputed that witness - Ukanda who was Kotwal of that village, in fact reported the incident of murder to Police Station when he came to know that the victim Himmat was assaulted and multiple injuries were inflicted on his person, the station diary vide exhibit 41 lends assurance to the claim of witness - Ukanda that he reported the matter to the Police wherein he disclosed that the victim Himmat was assaulted at his house at midnight and multiple injuries were caused on his person. It is a matter of record that police recorded statement of victim - Himmat at his house vide exhibit 14 and it was on the basis of that statement the offence came to be registered. The evidence of witness - Ukanda in respect of recording statement of victim Himmat by police vide exhibit 14 remained undisturbed. The fact that police recorded the statement exhibit 14 of the victim has not been disputed nor any material has been brought by defence to show that the victim was not in position to make the statement. It is significant to note that witness - Gulab was panch witness in whose presence statement - Exhibit 14 was recorded by the police. In his evidence he has clinchingly stated about the victim having made statement before police vide exhibit 14. His evidence remained unshaken though he was subjected to cross examination. In fact this witness Gulab was an independent witness. There was no reason for him to give false evidence against the appellant. Similar is the case with the evidence of witness - Ukanda. Nothing has been brought in his evidence to indicate that the witness has given false evidence before the court. Therefore, the statement exhibit 14 gains sanctity and it is found to be truthful. In the said statement exhibit 14, which is acceptable as the dying declaration in the eventuality of the victim Himmat having died subsequently is admissible in evidence as dying declaration. It is also matter of record that after the statement was recorded and victim was brought to the hospital, he died at about7. 30 a. m. This fact lends assurance to the claim of witness Gulab and Ukanda that in their presence victim made statement at his house as recorded by police in terms of the statement exhibit 14. Therefore, there is no doubt as to the victim being very much alive when his statement was recorded and also about his fitness to make statement.