DILIP DATTOBA MANE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, who stands convicted for an offence punishable under Sec. 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 500/ -, in default of which to undergo RI for one month, by the 4th Additional Sessions Judge, Kolhapur, by judgment dated 30/9/1993, in Sessions Case No. 70 of 1989, by this appeal questions the correctness of his conviction and sentence. Facts as are necessary for the decision of this appeal may briefly be stated thus: -

(2.) On committal of the case to Court of Sessions, trial court vide Exh. 2 framed charge against the appellant for offence punishable under Sec. 302 of the IPC. Prosecution examined to 15 witnesses. P.Ws. 1 to 7 and 9 did not support the prosecution case and were declared hostile. The conviction of the appellant, therefore rests on the dying declaration at Exh. 24 recorded by P.W. 8 -Shamrao, an Executive Magistrate as well as the history recorded by P.W. 15 - Dr. Nanivadekar. The defence of the appellant in the trial was of denial. The trial court upon appreciation of the evidence, convicted and sentenced the appellant as afore -stated.

(3.) P.W. 8 - Shamrao, an Executive Magistrate, who had recorded the dying declaration of Shobha at Exh. 24, deposes about going to the CPR Hospital and recording the dying declaration of injured Shobha. In cross -examination, he has admitted that he has not recorded the dying declaration in question and answer form. Importantly, this witness has not deposed that the dying declaration, after it was scribed, was read over to injured Shobha and Shobha had admitted the contents to have been correctly recorded. Even on the dying declaration at Exh. 24, there is no endorsement about reading over of the dying declaration to injured Shobha and Shobha admitting the contents to have been correctly recorded. In the light of the aforesaid evidence and in the light of the judgment of the Supreme Court in Shaikh Bakshu and Ors. vs. State of Maharashtra : (2008) 1 SCC (Cri) 679 and judgment of the Division Bench of this Court in Abdul Riyaz Abdul Bashir vs. State of Maharashtra : 2012 ALL MR (Cri) 2188, no reliance can be placed on the dying declaration at Exh. 24. The dying declaration at Exh. 24, therefore, will have to be left out of consideration.