MAHADEO PRALHAD SALAVE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant who stands convicted for an offence punishable under Section 306 of the Indian Penal Code and sentenced to R.I. for 7 years and to pay a fine of Rs. 1,000/- in default of which to undergo further R.I. for one year and fine of Rs. 500/-in default of which to undergo R.I. for six months for offence punishable under Section 504 of the Indian Penal Code, by the 3rd Additional Sessions Judge, Solapur, by Judgment dated 22.4.1993 in Sessions Case No. 147 of 1991 by this Appeal questions the correctness of his conviction and sentence. The State being aggrieved by the acquittal of the Appellant/Accused for offence punishable under Section 302 of the Indian Penal Code has filed Criminal Appeal No. 362 of 1993, questioning the acquittal of the accused. Since both these Appeals arise from the same Judgment of the Trial Court, these Appeals are being decided by this common Judgment.

(2.) Facts as are necessary for the decision of these Appeals may briefly be stated thus.

(3.) We have heard Mr. Sabrad, learned Counsel for the Appellant and the learned APR The learned Counsel for the Appellant has urged before us that the dying declaration ought not to have been relied upon by the High Court in the light of the fact that the dying declaration at Exhibit 17 does not bear the endorsement of the Executive Magistrate that the dying declaration had been read over to injured Rukmini. The learned Counsel for the Appellant has further urged before us that in the light of the Judgment of the Supreme Court in Shaikh Bakshu & Ors. v. State of Maharashtra, 2008 1 SCC(Cri) 679as well as the Judgment of the Division Bench of this Court in Abdul Riyaz Abdul Bashir v. State of Maharashtra, 2012 ALLMR(Cri) 2188. The dying declaration ought to have been disbelieved. The learned Counsel for the Appellant has further urged before us that the Trial Court could not have created an entirely new case for sustaining the conviction of the Appellant for an offence punishable under Section 306 of the Indian Penal Code. The learned APP has urged for dismissal of the Appeal filed by the Appellant and for allowing the State Appeal and convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code.