VIJAY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Conviction and sentence recorded by Additional Sessions Judge, Amalner, Dist.Jalgaon dtd. 11/5/2017 in Sessions Case No.5 of 2016 for offence under Sec. 302 of the Indian Penal Code (IPC) has resulted into filing of instant appeal by invoking Sec. 374 of the Code of Criminal Procedure thereby questioning the legality and sustainability of the impugned judgment. CASE OF PROSECUTION IN BRIEF

(2.) Present appellant was chargesheeted by Amalner Police Station for commission of offence under Sec. 302, 504 of the IPC in the backdrop of FIR bearing 148 of 2015 registered on the strength of dying declaration Exh.25 recorded by a Lady Police Constable posted at Dhule City Police Station wherein deceased informed that her husband was addicted to liquor. Since 7- 8 days prior to the occurrence, he was demanding money from her and on failure to meet the demand he abused her. Deceased gave statement that on 7/10/2015 at around 03:00 p.m. he again put up a demand of money for liquor, abused her and on refusal, sat on her, poured kerosene and thereafter ignited her. Brother and parents shifted her to the hospital where after on examination by PW4 Dr.Kuwar regarding fitness to give statement, her statement was recorded and initially offence was recorded under Sec. 307 and 504 of the IPC. She succumbed to 96% burns and so crime was converted to Sec. 302 of the IPC and accused was chargesheeted and finally tried by learned Additional Sessions Judge, Amalner, who passed above mentioned impugned order questioned before us in appeal. SUBMISSIONS On behalf of Appellant :

(3.) For relief of setting aside impugned judgment, learned Counsel for the appellant would submit that there are two dying declarations Exh.24 and Exh.25. He pointed out that deceased allegedly suffered 96% burns and therefore, it is doubtful whether she was in capacity to give statement. His second attack on same count is that in view of scoring and interpolations in the dying declarations, there is possibility of Doctor giving endorsement and certification by not examining the deceased but issuing certification by sitting in chamber. He further submitted that except child witness testimony, there is no other independent witness. When the child was with maternal uncle and being in custody of grand parents, possibility of child to be tutored cannot be ruled out and therefore, his evidence cannot be straightway accepted in absence of corroboration. He pointed out that in dying declarations it is stated that brother and parents of deceased have allegedly shifted her to the hospital, but none of them are examined. That history reported at the time of admission is also doubtful. All such crucial aspects have not been considered by the learned trial Judge and straightway dying declarations are relied and hence he prays to allow the appeal. On behalf of State :