DINESH GOPAL BHURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 11-7-1997 passed by the III Additional Sessions Judge, Thane in Sessions Case No. 560 of 1996 convicting the appellant-accused under section 302 of Indian Penal Code to suffer life imprisonment this appeal is filed on the grounds as mentioned in the memo of appeal as also verbally canvassed by the learned Counsel appearing on behalf of the appellant-accused.

(2.) THE story of the prosecution stated briefly is that: on 23-1-1996 the police received information that there was case of burns in the locality. Therefore the police under intimation to the Mahila Dakshata Samiti, Vartaknagar went to the site, found body of the victim in burnt condition, took the body to the hospital. The Mahila Dakshata Samiti representative accompanied them to the hospital and looking to the condition of the deceased the Police Inspector without waiting for Magistrate to come and record the dying declaration, himself recorded the declaration after recording of which the victim succumbed to injuries and died. On the basis of the statement made in the dying declaration accused who is the husband of the victim was arrested and prosecuted. The prosecution has examined nine witnesses to prove its case of murder by burning against the accused. The accused also led evidence of two witnesses and examined himself in support and denied the charges.

(3.) WITH the assistance of the learned Counsel for the appellant and the learned Public Prosecutor we have scrutinized the evidence on record and reappreciated the evidence. It was contended on behalf of the appellant that the dying declaration could not be accepted; in the case as it does not inspire confidence and is not made in accordance with principles of law which by now are settled. Learned Counsel placed heavy reliance on the latest judgment of the Supreme Court delivered by the Constitutional Bench of the Supreme Court in the case of (Laxman v. State of Maharashtra) 2003 Bom. C. R. (Cri.) (S. C.)161 : 2002 All. M. R. (Cri.) 2259 (S. C.) and claimed that none of the ingredients necessary for accepting the dying declaration as the only proof of guilt are not present in the instant case and therefore it is liable to be rejected. He also took us through the evidence on record and pointed out several infirmities which according to him disproved the dying declaration or made it unreliable. He therefore claimed for acquittal of the accused. The learned Public Prosecutor however supported the judgment of conviction on the ground that it is permissible in law to have a dying declaration recorded by Police Officer and relying on judgment of the Supreme Court contended that where it is not possible to wait for a Magistrate to come and record the dying declaration the recording of which by Police Officer in certain cases may be acceptable. The contention of the learned Public Prosecutor relying on the decision of the Supreme Court reported in the case of (Laxmi (Smt.) v. Om Prakash and others) 2001 (6) S. C. C. 118, is that the Supreme Court has observed that though practice of Police Officer recording a dying declaration is not approvable, has however further observed that normally the statement must be recorded by the Magistrate excepting cases where deceased is not in such precarious condition that the Police Officer himself has to record the statement and therefore according to the Public Prosecutor there is no reason to discard this dying declaration and recording of conviction is consequently correct.