Kalyan Gopinath Dube v. The State of Maharashtra

to have been relied by the learned trial Court. He submits that even dying declarations are not recorded promptly. Therefore, there is doubt about its veracity. According to him, there are several defects in the dying declaration like (i) no identification of signature of deceased (ii) time of recording dying declarations is not noted (iii) there is no endorsement that after recording dying declarations they were read over to deceased (iv) no certificate of fitness CRI APPEAL 245 OF 2017.odt issued by Doctor prior to recording and subsequent to recording dying declarations (v) there is delay in recording both the dying declaration. According to learned Counsel, spot panchanama is not drawn immediately. That there is no motive attributed as to why deceased was set on fire. On the contrary, learned Counsel submitted that burns are accidental. Therefore, he prays to allow the appeal. On behalf of State :

#4. In answer to above, learned APP would submit that both the dying declarations are recorded promptly. The authorities / scribes, who have recorded dying declarations, are examined by prosecution. Both dying declarations are consistent about role of husband. That husband used to beat deceased and on that day also for the entire day he beat her and in the night set her on fire. That being husband, he is obliged to offer explanation for the burns suffered by his wife at odd hours, but no explanation is coming forth from him. That dying declarations are attributing role to him and therefore, it is her submission that learned trial Court has committed no error in recording the guilt and so it is prayed that appeal be dismissed.

#5. In support of its case, prosecution has examined in all nine witnesses. Their status is as under : CRI APPEAL 245 OF 2017.odt EVIDENCE ON BEHALF OF PROSECUTION PW1 Ganpat Bhausaheb Jadhav is brother-in-law of deceased. His evidence is at Exh.16. PW2 Bhausaheb Madhavrao Pathare is PSI attached to Bidkin Police Station, who recorded dying declaration Exh.25. His evidence is at Exh.16. PW3 Mohanlal Reshmaji Harne is Naib Tahsildar (Special Executive Magistrate), who recorded dying declaration Exh.36. His evidence is at Exh.32. PW4 Dattatraya Ganpatrao Vaidye is Pancha to spot panchanama. His evidence is at Exh.40. PW5 Dr.Ramesh Tanaji Wasnik is the Autopsy Doctor. His evidence is at Exh.44. PW6 Dattu Bhaurao Padul is father of deceased. His evidence is at Exh.51. PW7 Mahesh Dattatraya Vaidye is Pancha to seizure panchanama. His evidence is at Exh.55. Seizure panchanama is at Exh.58. PW8 Dr.Vishram Sagar Pande is the medical officer attached to GHATI hospital, who examined deceased and certified that she was in position to give statement. PW9 Gorakh Pundlikrao Khandalkar (PSI) is the Investigating Officer. His evidence is at Exh.67.

#6. The case of prosecution is mainly based on dying declarations. CRI APPEAL 245 OF 2017.odt Before proceeding to ascertain whether dying declarations are voluntary and inspiring confidence, we wish to state in brief, law on manner of appreciation of evidence in the form of dying declaration as well as settled principles which are culled out by the Hon’ble Apex Court from the various landmark cases like Khushal Rao v. State of Bombay; AIR 1958 SC 22, Paniben v. State of Gujarat; (1992) 2 SCC 774, Laxman v. State of Maharashtra; (2002) 6 SCC 710, Ganpat Bakaramji Lad v. State of Maharashtra; 2011 ALL MR Cri. 2249. Surendrakumar v. State of Punjab; ORDER (II) Conviction awarded to appellant / original accused no.1. - Kalyan Gopinath Dube by the learned Additional Sessions Judge, Aurangabad in Sessions Case No.278 of 2014 on 24-11-2016, after holding him guilty for committing offence under Sections 302 of the Indian Penal Code, stands quashed and set aside. (III) The appellant stands acquitted of the offence punishable under Sections 302 of the Indian Penal Code. (IV) The appellant be set at liberty, if not required in any other case. (V) Fine amount deposited, if any, be refunded to him after the statutory period is over. (VI) We clarify that there is no change in the order passed by the learned Additional Sessions Judge, Aurangabad regarding disposal of Muddemal. (ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)