AKARAM MALAPPA AAIVALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellant, who stands convicted for offence punishable under Sections 302, 504 and 506 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 5000/-, in default of which to undergo RI for one year, RI for one year and to pay a fine of Rs. 500/- in default of which to undergo RI for three months and RI for one year and to pay a fine of Rs. 500/- in default of which to undergo RI for three months, by the Additional Sessions Judge, Kolhapur, by judgment dated 25/04/2007, in Sessions Case No. 135 of 2006, by this appeal questions the correctness of his conviction and sentence. Briefly stated the facts, as are necessary for the decision of this appeal, may be stated thus:--

(2.) On committal of the case to Court of Sessions, trial court vide Exh. 2 framed charge against appellant for offence punishable under Sections 302, 504 and 506 of IPC. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 19 witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence of the prosecution, convicted and sentenced the appellant as afore-stated. P.W. 1 to P.W. 13 did not support the prosecution and were declared hostile. P.W. 8 - Pinky Kamble, daughter of the appellant and P.W. 13 - Jaibai Kengar, mother of deceased Vijaymala also did not support the prosecution and were declared hostile. The entire conviction of the appellant, therefore, rests on the two dying declarations at Exh. 28 and Exh. 34.

(3.) Exh. 34 was recorded by P.W. 15 - Ranjeet Desai. In cross-examination, P.W. 15 - Ranjeet Desai has admitted that the dying declaration at Exh. 34 was not in his own handwriting and was in the handwriting of one Bajaran Madhale, a candidate appointed on ad-hoc basis. He has also admitted that Exh. 34 does not contain the name of P.W. 15 - Ranjeet Desai. P.W. 15 - Ranjeet Desai also does not depose that the dying declaration was read over to Vijaymala and Vijaymala had admitted the contents to have been correctly recorded. The dying declaration at Exh. 34 also does not contain any endorsement about reading over of the dying declaration to Vijaymala. In the light of the aforesaid infirmities, according to us, no reliance at all can be placed on the dying declaration at Exh. 34. The dying declaration at Exh. 34 was neither read over to Vijaymala nor is the dying declaration at Exh. 34 scribed by P.W. 15--Ranjeet Desai and, in fact, the scribe of the dying declaration has not been examined. There is another suspicious circumstance and that is that during the recording of the dying declaration at Exh. 34, P.W. 16 - Dr. Dhande had left for attending an emergency and it is only at 8.10 p.m. that he had endorsed on the dying declaration at Exh. 34 that Vijaymala was conscious, oriented and was in a fit condition to give her statement. For the aforesaid reasons, therefore, according to us, no reliance at all can be placed on the dying declaration at Exh. 34.