YUVRAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellant/accused challenges judgment dated 10.02.1999 delivered by the 2nd Additional Sessions Judge, Amravati in Sessions Trial No. 87/1998, holding him guilty for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life with fine of Rs. 300/ & in default of payment of fine to suffer further R.I. for three months. He is also convicted under Section 452 of Indian Penal Code and is sentenced to suffer R.I. for three years and to pay fine of Rs. 100/ and in default to suffer R.I. for 15 days.

(2.) We have heard Shri A.S. Manohar, learned Counsel for the appellant / accused and Shri D.B. Patel, learned A.P.P. for respondent State.

(3.) Shri Manohar, learned Counsel at the outset pointed out that the material circumstances used against the appellant/accused have not been put to him while recording his statement under Section 313 of Criminal Procedure Code, and said material circumstances being facts disclosed in the dying declarations, conviction under Section 302 or under Section 452 of Indian Penal Code cannot be sustained. He points out that surprisingly there are no eye witnesses, though the alleged incidence has taken place in densely populated area. He submits that the deceased Ramratibai Ganeshsingh Thakur had given a statement at Exh.58, which has been treated and acted upon as dying declaration, contrary to law. He also submits that, the said statement allegedly made to the police authorities, therefore, could not have been used at all. He further points out that there is one more dying declaration of the deceased Ramratibai at Exh.52, 34, 53 and 35 recorded by the Special Judicial Magistrate, Balwant Dhole. He submits that the said Special Magistrate could not remember anything about 7 to 8 other dying declarations recorded by him in the month of July, 1997 but could depose about the contents of the disputed dying declaration of Ramratibai. He further states that the medical officer who gave certificate of fitness in respect of Ramratibai, acted very casually and in absence of proper certificate and examinations, that dying declaration also was not relevant.