Judgment:
Oral Judgment: (B.R. Gavai, J.)
1. The appeal challenges the judgment and order passed by the learned Additional Sessions Judge, Nagpur in Sessions Case No.354 of 2011 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.5000/- and in default of payment of fine to suffer rigorous imprisonment for 1 year.
2. The prosecution case in brief is that deceased Kalpana is wife of the accused. They were married prior to 15 years of the incident. They were blessed with son Sanket and daughter Prajakta out of the said wedlock. It is the prosecution case that Kalpana was working as Peon in St. Paul School, Nagpur whereas the appellant was without any work and addicted to liquor. The matrimonial relations between the accused and the deceased were strained because of the vices of the accused. The accused used to demand money to deceased Kalpana for his vices and on refusal, the accused used to quarrel with the deceased. It is the prosecution case that report was also lodged with Police Station Hudkeshwar by deceased Kalpana one month prior to the incident.
3. It is the prosecution case that on 27.03.2011 at around 7.30 p.m. Accused Vilas came under the influence of liquor and demanded Rs.20/- to Kalpana for consumption of liquor. On refusal, accused Vilas was enraged and poured kerosene kept in a can on the person of the deceased Kalpana and also sprinkled it on the ground and set her on fire. It is the prosecution case that the neighbours including Mayabai Sathe reached on the spot. Mayabai â“ sister-in-law of the deceased shifted Kalpana to Medical College and Hospital, Nagpur. Upon admission, intimation was given to the Police Booth of Medical College and Hospital, Nagpur by Medical Officer below Exh.23. The investigating officer P.S.I. Mahajan visited Ward No.4 of Medical College and Hospital, Nagpur and after obtaining endorsement from the Medical Officer, he recorded statement of the deceased below Exh.35. Another statement was also recorded by the H.C. Sanjay Bute. Another dying declaration was recorded by the Executive Magistrate PW5 Gopal Pendke on 28.03.2011. During the treatment, the deceased succumbed to the burn injuries on 1.4.2011. On the basis of the statement of the deceased below Exh.35, Crime bearing No. 48 of 2011 was registered initially for the offence punishable under Section 307 of the Indian Penal Code. On the death of the deceased, the same came to be converted to offence punishable under Section 302 of the Indian Penal Code. Investigation was conducted by the investigating officer. At the conclusion of the investigation, a charge sheet came to be filed in the Court of the learned Judicial Magistrate First Class, Nagpur. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the learned Sessions Judge, Nagpur.
4. Charge came to be framed for the offence punishable under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentenced the appellant as aforesaid. Being aggrieved thereby, the present appeal.
5. The learned counsel appearing on behalf of the appellant submits that the present case rests entirely on the dying declarations recorded by PW5 Gopal, PW6 Sanjay Bute and PW9 Rameshwar Mahajan. She submits that there are various discrepancies in the said dying declarations. She submits that the said dying declarations do not pass the test of credibility and truthfulness and as such the conviction on the basis of the said dying declarations would not be sustainable. She submits that the oral dying declaration allegedly given to PW2 Sunanda, PW3 Mangala and PW4 Sanket cannot be made the sole basis for recording an order of conviction. The learned counsel relies on the judgments of the Apex Court in the case of Shaikh Bakshu v. State of Maharashtra reported in (2007) 11 Supreme Court Cases 269 and in the case of Kantilal v. State of Rajasthan reported in (2009) 12 Supreme Court Cases 498 and the judgments of the Division Bench of this Court in the case of Shivaji Tukaram Patdukhe v. State of Maharashtra reported in 2004 ALL MR (Cri) 3220 and Abdul Riyaz Abdul Bashir v. State of Maharashtra reported in 2012 Cri.L.J. 3277. The learned counsel, therefore, submits that the prosecution has failed to prove the case beyond reasonable doubt and as such the appeal deserves to be allowed.
6. Per contra, Mr. Pathan, learned Additional Public Prosecutor, submits that the dying declarations recorded by P.W. Nos. 5,6 and 9 are trustworthy, reliable and cogent. He submits that merely because there are certain technical infirmities in the said dying declarations, the same cannot be discarded. He submits that in any case the said dying declarations are supported by the oral dying declarations given to PW2 Sunanda, PW3 Mangala and PW4 Sanket. The learned APP submits that the view expressed by the Division Benches of this Court in the case of Shivaji Patdukhe and Abdul Riyaz Abdul Bashir (supra) is doubted by the Division Bench of this Court in the case of Ganpat Bakaramji Lad .vs. The State of Maharashtra in Criminal Appeal No. 186 of 2013 and the matter has been referred to the larger Bench. He, therefore, submits that the reliance placed on the aforesaid two judgments of the Division Bench of this Court would not be available to the appellant.
7. With the assistance of the learned APP and the learned counsel appearing on behalf of the appellant, we have scrutinized the entire evidence on the record. As observed hereinabove, the present case rests on three written dying declarations and three oral dying declarations. No doubt that it is a settled law that the conviction can be based only on the basis of the dying declarations. However, the requirement in law is that the Court must come to the conclusion that the said dying declarations are cogent, reliable and trustworthy and of such a nature that they inspire confidence in the mind of the Court.
8. It appears that the first dying declaration is recorded by PW9 Rameshwar Mahajan. In the said dying declaration, the deceased is said to have stated that on the date of the incident at around 7.30 p.m. the appellant had come to the house and he was asking for an amount of Rs.20/- for drinking liquor. She states that at that point of time, her daughter was in front of the house and son was with her sister Mangala sine he was having holidays. She further states that since she did not give him money, the appellant poured kerosene on her person and also sprinkled it in the house. Thereafter he lighted the gas-stove with a lighter and kept her Saree on the same and as such she sustained burn injuries. She further states that since the Cooler was on in the front room, though she raised cries, her voice could not be heard. She further states that her husband poured kerosene on her person and opened the door. Her sister-in-law Mayabai also came there and brought her to the hospital. It is to be noted that PW8 Dr. Ujwal Yeole has stated in his evidence that he had found the deceased to be fit to give oral evidence and has also signed below the dying declaration. However, there is no endorsement by him that the deceased was in a mentally and physically fit state to give the dying declaration. He has also admitted in his cross-examination that it is true to say that Exh.30-A does not mention his endorsement that he has gone through the contents of bayan and then he put his signature over it. As such it cannot be said that the said dying declaration is free from doubt.
9. The second dying declaration is recorded by PW6 Sanjay Bute, Head Constable. Though in requisition at 11 a.m. there is an endorsement of PW8 Dr. Ujwal, he has admitted in his evidence that he has not made the endorsement that he has examined the patient. Apart from that after the dying declaration, there is no endorsement by the Medical Officer to the effect that the patient was in physically and mentally fit position to give dying declaration. As such the said dying declaration also cannot be said to be free from doubt.
10. Insofar as the third dying declaration recorded by the Executive Magistrate is concerned, there is no endorsement in the said dying declaration to the effect that the same was read over and explained to the maker thereof and that she admits the same to be true. Apart from that insofar as the signature of the deceased on the said dying declaration is concerned, there is erasion which is also admitted by the investigating officer in his evidence. In view of the view taken by the Apex Court in the case of Shaikh Bakshu v. State of Maharashtra reported in (2007) 11 Supreme Court Cases 269 and in the case of Kantilal v. State of Rajasthan reported in (2009) 12 Supreme Court Cases 498 and the judgments of the Division Benches of this Court in the cases of Shivaji Tukaram Patdukhe v. State of Maharashtra reported in 2004 ALL MR (Cri) 3220 and Abdul Riyaz Abdul Bashir v. State of Maharashtra reported in 2012 Cri.L.J. 3277, the said dying declarations also cannot be relied on and be made basis for the conviction of the accused.
11. That leaves us with the three oral dying declarations, two are allegedly given to PW2 Sunanda and PW3 Mangala â“ the sisters of the deceased. PW4 Sanket is the son of the deceased and the appellant. He has admitted in his evidence that his maternal aunts Mangala and Vanita had accompanied him in the Court. We, therefore, find that it will not be safe to pass an order of conviction solely on the basis of the said oral dying declarations which are admittedly a weak piece of evidence.
12. In that view of the matter, the appeal deserves to be allowed. However, the learned APP has brought to our notice the view taken by the Division Bench of this Court in the case of Ganpat Bakaramji Lad (supra) and the reference made by the learned Judges of the Division Bench to the Hon'ble The Chief Justice for a reference to the larger Bench. As such we will have to consider as to whether the present appeal is required to be kept pending in view of the reference made by the Division Bench in the case of Ganpat Bakaramji Lad (supra) or the matter requires to be decided on the basis of the judgments of the Division Benches of this Court holding the field.
13. The Apex Court in the case of Shaikh Bakshu (supra) has observed thus:-
"The trial court, however, held the dying declaration to be credible because the Medical Officer was present when the dying declaration was recorded. There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable."
14. It could thus be seen that in the said case though the trial Court and the High Court held that even though there was no mention in the dying declaration that it was read over and explained to the deceased, the High Court and the trial Court had concluded that even though it is not so stated, it has to be presumed that it was read over and explained. However, their Lordships of the Apex Court held that the said view was clearly unacceptable.
15. It will also be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Kantilal v. State of Maharashtra (supra). The Apex Court has observed thus:-
"36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Exh.D-4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness."
16. It could thus be seen that the Apex Court has held that not bearing an endorsement to the effect that the dying declaration was read over and explained to the deceased, also created a doubt on the credibility and truthfulness.
17. The Division Bench of this Court in the case of Shivaji Patdukhe (supra), even prior to the judgment of the Apex Court in the case of Shaikh Bakshu and Kantilal (supra) has observed thus:-
"13. The dying declaration at Exh.24, according to us, can not be relied upon as the statement was never read over to deceased Durgabai and there is no endorsement to that effect. When the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration can not be made foundation for sustaining the conviction."
18. It could thus be seen that even prior to the Apex Court's judgments in the above cases, the Division Bench of this Court has held that when the dying declaration was not read over to the maker thereof and she did not admit the contents thereof to be correct, the dying declaration cannot be made foundation for sustaining the conviction.
19. It will also be relevant to refer to the judgment of the Division Bench of this Court in the case of Abdul Riyaz Abdul Bashir (supra). The said judgment takes into consideration the judgment of the Apex Court in the case of Shaikh Bakshu and so also the judgment of the Division Bench in the case of Shivaji Patdukhe. The Division Bench of this Court has observed thus:-
"However, column no.8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent. The said column is left blank. 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. The said column cannot be treated as an empty formality since the deponent is not available for cross- examination. Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the Court. It, therefore, appears that the statement was never read over to the deceased and there is no endorsement to that effect. When the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. In fact the said column is blank and, therefore, the said fact cannot be assumed. The learned counsel for the appellant has relied upon the judgment of the Apex Court reported in (2008) 1 Supreme Court Cases (Cri) 679- Shaikh Bakshu and others .vs. State of Maharashtra wherein it is held by the Apex court that "there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained". The Apex Court has held that the said view is unacceptable."
(Emphasis supplied)
It could be seen that this Court has taken a view that even if it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct was actually followed. It has been held that the said fact cannot be assumed.
20. It could thus be seen that it has been the view of the Division Bench of this Court even prior to the judgment of the Apex court in the case of Shaikh Bakshu and Kantilal (supra) that if the dying declaration is not read over and explained and that the maker thereof has not admitted the contents thereof to be correct, such a dying declaration cannot be made foundation for sustaining the conviction. Subsequent to the judgment in the case of Shaikh Bakshu, the view taken by the earlier Division Bench of this Court has been fortified in the case of Abdul Riyaz Abdul Bashir. It could thus be seen that the view of the Division Bench of this Court in the case of Abdul Riyaz Abdul Bashir relying on the earlier view of this Court as well as the judgment of the Apex Court in the case of Shaikh Bakshu is that, even if it is mentioned in the printed proforma that the statement is read over to the deponent, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct.
21. The Apex Court in the case of Official Liquidator .vs. Dayanand and others reported in (2008) 10 Supreme Court Cases 1 after considering all the earlier judgments on the question of judicial propriety and discipline, has observed thus:-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
22. Recently in the case of P.Suseela .vs. University Grants Commission reported in (2015) 8 Supreme Court Cases 129, the Apex Court has observed thus:-
In SLPs (C) Nos.3054-55 of 2014, a judgment of the same High Court dated 6.1.2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court. In fact, as was pointed out to us by learned counsel for the appellants, the distinction made in paragraph 20 between the facts of the earlier judgment and the facts in the later judgment is not a distinction at all. Just as in the 2012 judgment Ph.D. degrees had been awarded prior to 2009, even in the 2014 judgment Ph.D. degrees with which that judgment was concerned were also granted prior to 2009. There is, therefore, no distinction between the facts of the two cases. What is even more distressing is that only sub para 4 of the conclusion in the 2012 judgment is set out without any of the other sub paragraphs of Paragraph 104 extracted above to arrive at a result which is the exact opposite of the earlier judgment. This judgment is also set aside only for the reason that it did not follow an earlier binding judgment.
23. It could thus be seen that the Apex Court has in clear terms held that the judgment of the Division Bench of the same Court is binding on the subsequent Division Benches. The subsequent Division Bench can either follow it or refer such matter to the Chief Justice to constitute a Full Bench if it differs with it. In the case of P. Suseela though the subsequent judgment had reached the right result, the Apex Court has observed that it did not appreciate the manner in which the subsequent judgment had dealt with an earlier binding Division Bench judgment of the same High Court.
24. We find that the approach adopted by the Division Bench of this Court in the case of Ganpat Bakaramji Lad (supra) is not permissible on account of judicial discipline and propriety. Division Bench of this Court in the case of Ganpat Bakaramji Lad has observed thus:-
"11. In the instant case, we have already held that the Dying Declaration [Exh.24] is trustworthy and is required to be fully relied upon. However, it does not contain any endorsement that the same was read over and explained to the deceased and that she admitted the same to be correct. In the light of the above Division Bench judgments of this Court, we would not be in a position to accept the Dying Declaration [Exh.24]. But, since, as already stated, we are unable to agree with the view taken by the Division Bench in the aforesaid two decisions for the reasons below stated by us, the question is required to be referred to the Hon'ble the Chief Justice.Apropos our conclusion to accept the Dying Declaration [Exh.31], the present appeal would result into dismissal thereof. It may be stated that the question proposed by us to be referred may become academic. However, in the light of the following observations of the Apex Court in Para 32 of its judgment in the case of State of Punjab Vs. Salil Sabhlok and others [ (2013) 5 SCC 1] (at page 29), the reference can still be made which we do:-
"it will be clear from paras 6 and 7 of the order dated 13.7.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that the power of appointment, need not be regulated by any procedure. The Division Bench of the High Court was further of the view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred the matter to the three Judges. The Division Bench also referred the question to the larger Bench of three Judges as to whether the procedure adopted in the present case for appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was valid and if not, what is the effect of not following the procedure. I do not, therefore, find any merit in the submission of Mr. Rao that the Division Bench of the High Court having found in its order dated 13.7.2011 that the irregularities and illegalities pointed out in the writ petition against Mr. Harish Dhanda are unsustantiated, should not have made an academic reference to the larger Bench of the High Court."
12.We have further reasons to give for differing with the aforesaid Division Bench Judgments which are as follows:-
[a] As held by us, the evidence of PW 6 Umesh Khodke, Executive Magistrate, is trustworthy as to the Dying Declaration given to him by the deceased, which was the second Dying Declaration in point of time.
What was stated to him by the declarant about the role of the appellant-accused has also been believed by us. He recorded the Dying Declaration as per her say has also been believed by us. He also stated in his evidence as under:-
"2. ................................................
...... .............I asked some formal questions to the patient so as to ascertain myself regarding the fitness of the patient to give statement. I started recording statement of the patient at 6.55 p.m. I asked the patient's name, address and as to how incident took place. Patient told me that on 21.2.2011 in the morning at about 9 to 10 a.m. her husband came to the house by drinking liquor and abused her, and poured kerosene on her person and set her on fire. The women in neighbour admitted her in the hospital. As per her say I recorded her statement. Thereafter I read over the same to her. She admitted the same to be correctly recorded. I took her left hand thumb impression on statement. Thereafter I signed the same. The dying declaration now shown to me is recorded by me. It bear left hand thumb impression of deceased Manisha and my signature.
The contents therein are correct.
It is at Ex.24. It would have been 7.10 p.m., by that time. There I again requested medical officer to examine the patient to ascertain about her condition. Doctor had examined her and stated that she is fit and had accordingly issued the certificate."
We have already stated that by way of omission, the said witness stated in his Examination-in-Chief that he had read over the Dying Declaration to her and that she had admitted the same to be correctly recorded and since that is an omission duly proved, we are unable to rely upon the same. The fact, however, remains that in Dying Declaration [Exh.24], it is nowhere endorsed that the same was read over and explained to the deceased and that she admitted the same to be correctly recorded. Fact, however, remains that we have believed entire evidence and in the wake of the said fact, we are unable to see any requirement of law anywhere that the last formality of reading over the same and the declarant admitting the same to be correctly recorded should result into rejection of the entire Dying Declaration duly proved by him and duly believed by us as above. As earlier stated, there is no pronouncement of law to the said effect in the case of Shaikh Bakshu and in the absence of any requirement of law, we think, 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.
[b] The observations made by the Supreme Court [underlined] in para 13 of the Judgment in the case of Sk. Bakshu [cited supra] do not constitute either ratio decedendi or obiter dicta and hence there is no pronouncement of law by the summit court that such a dying declaration should be rejected only because the same was not read over and admitted to be correct.
13.We, therefore, frame the following question for reference to the Larger Bench:-
"Whether a Dying Declaration can be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded?"
14.Harking back to the present case, we have come to the conclusion that there is no merit in this appeal and the same must be dismissed. Hence the following order:-
ORDER
[a] Criminal Appeal No. 186 of 2013 is dismissed.
[b] Registry is directed to place the papers before Hon'ble the Chief Justice in the light of the observations made in this judgment."
(Emphasis supplied)
25. It could thus be seen that the Division Bench found that there was no endorsement that the dying declaration was read over and explained to the deceased and that she admitted the same to be correct. The Division Bench has further observed that in the light of the Division Bench judgments of this Court, the Court would not be in a position to accept the said dying declaration. However, the Division Bench goes further to say that since it was unable to agree with the view taken by the Division Benches in the aforesaid two decisions, for the reasons stated by it, the question is required to be referred to the Hon'ble Chief Justice. The Division Bench further states that the Court was unable to see any requirement of law anywhere that the last formality of reading over the same and the declarant admitting the same to be correctly recorded should result into rejection of the entire dying declaration. We find that the approach adopted by the learned Judges of the Division Bench is totally unacceptable. The earlier Division Benches in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir (supra) have in unequivocal terms held that unless the dying declaration is read over, explained and maker thereof admits the contents to be true, the same cannot be made a foundation for conviction. It is further to be noted that the view of the Division Bench in the case of Shivaji Tukaram Patdukhe was prior to the pronouncement of the judgment of the Apex Court in the case of Shaikh Bakshu whereas the view of the Division Bench in the case of Abdul Riyaz Abdul Bashir was after taking into consideration the law laid down by the Apex Court in the case of Shaikh Bakshu. However, the Division Bench in the case of Ganpat Bakaramji Lad (supra) has taken a view which is totally contrary to the view taken by the aforesaid two Division Benches. In this situation the option which was available to the Division Bench was either to follow the earlier Division Benches or if it disagreed, to have referred the matter to the Hon'ble the Chief Justice for placing it before the larger Bench. The Division Bench has rightly done so by directing the same to be placed before the Hon'ble Chief Justice for referring it to the larger Bench. However, while doing so, the appeal has been decided and dismissed.
26. If the Division Bench was of the view that the reference is necessary, then the only option available to the Division Bench was to make a reference and await till the decision by larger Bench thereon. However, the Division Bench did not wait for the decision of the larger Bench and dismissed the appeal. By such a procedure, an anomalous situation may arise. Suppose a larger Bench tomorrow decides to accept the view of the Division Benches in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir and confirms the same , in a normal circumstances if the appeal would have been kept pending, the appeal would have been required to be allowed. No doubt that if the larger Bench accepts the view of the Division Bench in the case of Ganpat Bakaramji Lad, the appeal will have to be dismissed. However, now since the appeal is already dismissed, even if the appellant in the case of Ganpat Bakaramji Lad would have been entitled to the judgment of the larger Bench in case it upholds the view of the earlier Division Benches in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir , now the appellant in the said case would not be entitled to that benefit, inasmuch as in criminal matters even a review would not be permissible once the judgment is pronounced.
27. Though we have serious doubt as to whether a reference was necessary, inasmuch as even an obiter dicta of the Supreme Court binds this Court, since the coordinate Bench of this Court has already referred the matter to the Hon'ble the Chief Justice for constitution of the larger Bench, we refrain from observing anything on that.
Insofar as the present appeal is concerned, we find that the view that holds the field is that of the Division Benches of this Court in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir and that view is that unless the dying declaration is read over and explained and the maker thereof admits the contents to be as per the version, such a dying declaration cannot be made a foundation for conviction. The present appeal, therefore, deserves to be allowed.
28. The appeal is allowed. The order of conviction and sentence is set aside. The appellant is acquitted of the charges charged with. The appellant is directed to be released forthwith, if not required in any other case.
29. The fees to be paid to the learned counsel appointed for the appellant are quantified at Rs.5000/-.