GANPAT BAKARAMJI LAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In the case of Shivaji s/ o Tukaram Patdukhe v. State of Maharashtra , reported in 2004 ALL MR (Cri) 3220, the Division apeal186.13.odt Bench of this Court [M/s. P.V. Hardas & M.G. Gaikwad, JJ.] considered the dying declaration recorded by Special Executive Magistrate on the basis of which the conviction was recorded by the Sessions Court for the offence punishable under Section 302 of the Indian Penal Code and was heavily relied upon by the prosecution, to maintain it. This Court set aside the conviction and granted acquittal holding that there is no convincing evidence. In para 13, the reason was given to reject the dying declaration as under :

(2.) Similar view was taken by the another Division Bench [M/s. P.V. Hardas and Sadhana S. Jadhav, JJ.] in the case of Abdul Riyaz Abdul Bashir v. State of Maharashtra , reported in 2012(3) BCR (Cri) 329, setting aside the conviction for the offence punishable under Section 302 of the Indian Penal Code recorded by the Sessions Court on the basis of the dying declaration. The dying declaration was recorded by the Executive Magistrate. It was held that to rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct, and in the absence of it, the dying declaration cannot inspire confidence of the Court. Reliance was placed upon the decision of the Apex Court in the case of Shaikh Bakshu and others v. State of Maharashtra , reported in (2007) 11 SCC 269, and the decision of the Division Bench of this Court in Shivaji's case, cited supra.

(3.) The another Division Bench of this Court [M/s. A.B. Chaudhari and P.N. Deshmukh, JJ.] considered this aspect in the case of Ganpat Bakaramji Lad v. The State of Maharashtra, reported in 2015(4) BCR (Cri) 534. The Division Bench expressed its disagreement with the aforesaid two decisions of the Division Benches holding that it is neither the ratio nor the obiter dicta of the decision of the Apex Court in Shaikh Bakshu's case that the dying declaration has to be rejected only because the contents of it were not read over and admitted to be correct by the declarant. The Division Bench took the view that it would be unjust to reject the entire dying declaration duly proved and believed, only for the reason that it was not read over and admitted to be correct by the declarant. It confirmed the conviction under Section 302 of the Indian Penal Code recorded on the basis of the dying declaration.