(1.) THE appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life, by the Ad -hoc Additional Sessions Judge -1, Nashik, by judgment dated 28/07/2008, in Sessions Case No. 98 of 2007, by this appeal challenges his conviction and sentence. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus: -
(2.) ON committal of the case to Court of Sessions, the trial court vide Exh. 4 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined seven witnesses. The defence of the appellant was of denial. The trial court, after appreciation of the evidence, convicted and sentenced the appellant as afore -stated.
(3.) PROSECUTION has examined PW 3 - Shivkumar, the Special Executive Magistrate, who had recorded the dying declaration at Exh. 20 as well as PW 6 - Police Head Constable Pimpalse who had recorded the dying declaration at Exh. 35. PW 5 - Dr. Gavit had examined the injured and had opined that she was in a fit condition to give her statement. In our opinion, both the dying declarations at Exh. 20 as well as Exh. 35 cannot be relied upon for sustaining the conviction of the appellant as there is no evidence that the dying declarations had been read over to the declarant and the declarant had admitted the contents to have been correctly recorded. In the absence of such evidence, the dying declarations cannot be made the foundation for sustaining the conviction. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Shaikh Bakshu and Ors. vs. State of Maharashtra ((2008) 1 SCC (Cri.) 679) : (2007 ALL SCR 2407) and Abdul Riyaz Abdul Bashir vs. State of Maharashtra (2012 ALL MR (Cri.) 2188).