Case: Babu Rajirao Shinde Vs. State of Maharashtra

HEGDE, J. 1. The appellant was tried and convicted before the Extra Additional Sessions Judge, Osmanabad for an offence under Section 302, I.P.C. He sentenced to suffer imprisonment for life. The charge against him was that on the morning of May 14, 1968 he attacked and killed one Barmaji. The said Barmaji and the appellant have married sisters. It is said that the appellant was married about a year and half before the occurrence but his wife did not go and live with him. The prosecution case is that the appellant suspected that the deceased was responsible for that situation. Hence he murdered him. 2. The prosecution case mainly rests on the dying declaration said to have been made by the deceased at the hospital. 3. The main question for decision in the case was whether the dying declaration put forward is reliable. It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted the post-mirtem examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing.

Decision:
1[ds]It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted them examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing.