RAMESH GYANOBA KAMBLE Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2011-8-132
HIGH COURT OF BOMBAY (FROM: AURANGABAD)
Decided on
August 12,2011
RAMESH GYANOBA KAMBLE
Appellant
VERSUS
STATE OF MAHARASHTRA
Respondents
Referred Judgements :-
REG. VS. FATA ADAJI [REFERRED TO]EMPRESS VS. SAMIRUDDIN [REFERRED TO]
KING EMPEROR VS. MATHURA THAKUR [REFERRED TO]
BAKSHISH SINGH VS. STATE OF PUNJAB [REFERRED TO]
KHUSHAL RAO VS. STATE OF BOMBAY [REFERRED TO]
BHIMA THIMA DHOTRE VS. PIONEER CHEMICAL CO. [REFERRED TO]
STATE OF H.P. VS. GOPI [REFERRED TO]
BASAVRAJ R. PATIL VS. STATE OF KARNATAKA [REFERRED TO]
GOVARDHAN RAOJI GHAIRE VS. STATE OF MAHARASHTRA [REFERRED TO]
ARVIND SING VS. STATE OF BIHAR [REFERRED TO]
TEHAL SINGH VS. STATE OF PUNJAB [REFERRED TO]
RAM BIHARI YADAV VS. STATE OF BIHAR [REFERRED TO]
PADMABEN SHAMALBHAI PATEL VS. STATE OF GUJARAT [REFERRED TO]
LAXMAN VS. STATE OF MAHARASHTRA [REFERRED TO]
SATYAVIR SINGH RATHI VS. STATE [REFERRED TO]
MALEKHA VS. STATE OF A.P. [REFERRED TO]
SRIHIVASA VS. STATE [REFERRED TO]
ZAHIRA HABIBULLA H. SHEIKH VS. STATE OF GUJARAT [REFERRED TO]
DHANRAJ JAIRAM PATIL VS. STATE [REFERRED TO]
RAM NATH MADHOPRASAD VS. STATE OF MADHYA PRADESH [REFERRED TO]
BHOGILAL CHUNILAL PANDYA VS. STATE OF BOMBAY [REFERRED TO]
STATE OF DELHI VS. RAM LOHIA [REFERRED TO]
TARACHAND DAMU SUTAR VS. STATE OF MAHARASHTRA [REFERRED TO]
SHIVAJI SAHABRAO BOBADE VS. STATE OF MAHARASHTRA [REFERRED TO]
RASHEED BEG VS. STATE OF MADHYA PRADESH [REFERRED TO]
MUNNU RAJA VS. STATE OF MADHYA PRADESH [REFERRED TO]
JAYARAJ VS. STATE OF TAMIL NADU [REFERRED TO]
K RAMACHANDRA REDDY VS. PUBLIC PROSECUTOR [REFERRED TO]
SURAJDEO OJHA VS. STATE OF BIHAR [REFERRED TO]
KUSA VS. STATE OF ORISSA [REFERRED TO]
STATE OF MAHARASHTRA VS. KRISHNAMURTI LAXMIPATI NAIDU [REFERRED TO]
STATE OF RAJASTHAN VS. MANBHAR:SHEOKARAN:KALYAN [REFERRED TO]
KAKE SINGH ALIAS SURENDRA SINGH VS. STATE OF MADHYA PRADESH [REFERRED TO]
RAMAWATI DEVI VS. STATE OF BIHAR [REFERRED TO]
STATE OF UTTAR PRADESH VS. RAM SAGAR YADAV [REFERRED TO]
NANHAU RAM VS. STATE OF MADHYA PRADESH [REFERRED TO]
STATE OF UTTAR PRADESH VS. MADAN MOHAN [REFERRED TO]
GANGOTRI SINGH VS. STATE OF UTTAR PRADESH [REFERRED TO]
PANIBEN VS. STATE OF GUJARAT [REFERRED TO]
MEESALA RAMAKRISHAN VS. STATE OF ANDHRA PRADESH [REFERRED TO]
SUNILKUMAR VS. STATE OF MADHYA PRADESH [REFERRED TO]
DANDU LAKSHMI REDDY VS. STATE OF ANDHRA PRADESH [REFERRED TO]
JAI KARAN VS. STATE OF NCT OF DELHI [REFERRED TO]
STATE OF HIMACHAL PRADESH VS. LEKH RAJ [REFERRED TO]
UKA RAM VS. STATE OF RAJASTHAN [REFERRED TO]
LAXMI VS. OM PRAKASH [REFERRED TO]
STATE OF PUNJAB VS. NABI DIN [REFERRED TO]
PANCHDEO SINGH VS. STATE OF BIHAR [REFERRED TO]
RAMILABEN HASMUKHBHAI KHRISTI VS. STATE OF GUJARAT [REFERRED TO]
P V RADHAKRISHNA VS. STATE OF KARNATAKA [REFERRED TO]
NARBADA DEVI GUPTA VS. BIRENDRA KUMAR JAISWAL [REFERRED TO]
SUKANTI MOHARANA VS. STATE OF ORISSA [REFERRED TO]
BRUNDABAN MOHARANA VS. STATE OF ORISSA [REFERRED TO]
SANSAR CHAND VS. STATE OF RAJASTHAN [REFERRED TO]
WAIKHOM YAIMA SINGH VS. STATE OF MANIPUR [REFERRED TO]
BHABANAND KAKOTI VS. STATE OF MEGHALAYA [REFERRED TO]
MARIA TECLA GOES PEREIRA VS. DENZYL LOBO [REFERRED TO]
MANOHAR DADARAO LANDGE VS. STATE OF MAHARASHTRA [REFERRED TO]
JIVAN TULSIRAM DHAVALI VS. STATE OF MAHARASHTRA [REFERRED TO]
DEORAO SONBAJI BHALERAO VS. STATE OF MAHARAHSHTRA [REFERRED TO]
LAXMIBAI MARUTI SATPUTE VS. STATE OF MAHARASHTRA [REFERRED TO]
SAHEBLAL ALIAS JUMASSHA SAYYAD VS. STATE OF MAHARASHTRA [REFERRED TO]
RAMESH GYANOBA KAMBLE VS. STATE OF MAHARASHTRA [REFERRED TO]
ASHOK PANDURANG JADHAV VS. STATE OF MAHARASHTRA [REFERRED TO]
Cited Judgements :-
DILIP VS. THE STATE OF MAHARASHTRA [LAWS(BOM)-2016-4-89] [REFERRED TO]SUNIL VS. STATE OF MAHARASHTRA [LAWS(SC)-2016-9-97] [REFERRED TO]
SANTOSH S/O RUMAL ADIWASI VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-6-4] [REFERRED TO]
VISHAL PRALHAD GAIKWAD VS. STATE OF MAHARASHTRA [LAWS(BOM)-2018-2-394] [REFERRED TO]
MADHUKAR BASWANT BARORA VS. STATE OF MAHARASHTRA [LAWS(BOM)-2019-4-195] [REFERRED TO]
DADARAO SHRIPAT THORAT VS. STATE OF MAHARASHTRA [LAWS(BOM)-2020-3-12] [REFERRED TO]
MOHAMMAD ZAKIR MOHAMMAD VS. STATE OF MAHARASHTRA [LAWS(BOM)-2020-4-26] [REFERRED TO]
RAHUL VS. STATE OF MAHARASHTRA [LAWS(BOM)-2020-10-69] [REFERRED TO]
JUDGEMENT
-
(1.)The Division Bench of this Court, in
their order of Reference in this appeal,
hereinafter referred to as "Ramesh Gyanoba
Kamble's case, doubted the correctness of the
judgment of another Division Bench of this Court
in Jivan Tulshiram Dhavali & another V. State of Maharashtra, 2008 2 BCR(Cri) 696, and so
also, other Division Bench in Laxmibai w/o Maruti Satpute & others V. State of Maharashtra, 2010 AllMR(Cri) 182, with regard to the
evidence/deposition of the witness who records a
dying declaration. In the opinion of the Division
Bench since the issue/question framed by them
frequently arises and needs to be considered by
Larger Bench, vide order dated 29th April, 2011,
directed the office to place the papers before
the Chief Justice for constitution of the Larger
Bench. Accordingly, the Chief Justice
constituted this Bench for consideration of the
question/issue framed in the Reference order.
The question framed and referred by the Division
Bench in Ramesh Gyanoba Kamble's case reads thus:
"Whether for proving a dying declaration recorded by a person, Magistrate, Executive Magistrate, is it essential requirement of law that the person who recorded the dying declaration shall repeat while deposing before Court the statement made by the maker or the dying person or narrate in exact words the statement of the maker -
(2.)The question formulated by the Division Bench uses the expression "in exact words". Learned Counsel for the parties are ad idem that the expression "in exact words" means, to depose before the Court, the contents of a dying declaration/statement of the dying person, in the words spoken by him, about the name/description, and the act of the accused, which resulted in his death. Thus, we will be considering whether a person/Magistrate/Executive Magistrate, who records a dying declaration, in order to prove the same, needs depose before the Court contents of the "statement" of a dying person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. We would also like to consider that merely because the presumption under Section 80 of the Indian Evidence Act, 1872 ( for short, "the Evidence Act") in respect of the dying declaration recorded by a Magistrate cannot be drawn, is it necessary that the Magistrate, who records the dying declaration, should depose before the trial Court as to the cause of death of the deceased or to the circumstances of the transaction which resulted in his death and more particularly in respect of the name/description, and act of the accused, in committing the offense.
(3.)The Division Bench (A.P.Lavande and A.B.Chaudhari, JJ.) in Jivan Tulshiram Dhavali's case, followed by another Division Bench (P.V.Hardas & A.V.Nirgude, JJ.) in Laxmibai w/o Maruti Satpute's case held that it is necessary for the Magistrate, who records the dying declaration, to depose before the Court about the name and act of the accused which resulted into murder, in the words spoken up by the dying person. In the Reference Order the Division Bench (Naresh H.Patil and T.V.Nalawade, JJ.) doubted the correctness of the view in Jivan Tulshiram Dhavali's case.
"Whether for proving a dying declaration recorded by a person, Magistrate, Executive Magistrate, is it essential requirement of law that the person who recorded the dying declaration shall repeat while deposing before Court the statement made by the maker or the dying person or narrate in exact words the statement of the maker -
(2.)The question formulated by the Division Bench uses the expression "in exact words". Learned Counsel for the parties are ad idem that the expression "in exact words" means, to depose before the Court, the contents of a dying declaration/statement of the dying person, in the words spoken by him, about the name/description, and the act of the accused, which resulted in his death. Thus, we will be considering whether a person/Magistrate/Executive Magistrate, who records a dying declaration, in order to prove the same, needs depose before the Court contents of the "statement" of a dying person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. We would also like to consider that merely because the presumption under Section 80 of the Indian Evidence Act, 1872 ( for short, "the Evidence Act") in respect of the dying declaration recorded by a Magistrate cannot be drawn, is it necessary that the Magistrate, who records the dying declaration, should depose before the trial Court as to the cause of death of the deceased or to the circumstances of the transaction which resulted in his death and more particularly in respect of the name/description, and act of the accused, in committing the offense.
(3.)The Division Bench (A.P.Lavande and A.B.Chaudhari, JJ.) in Jivan Tulshiram Dhavali's case, followed by another Division Bench (P.V.Hardas & A.V.Nirgude, JJ.) in Laxmibai w/o Maruti Satpute's case held that it is necessary for the Magistrate, who records the dying declaration, to depose before the Court about the name and act of the accused which resulted into murder, in the words spoken up by the dying person. In the Reference Order the Division Bench (Naresh H.Patil and T.V.Nalawade, JJ.) doubted the correctness of the view in Jivan Tulshiram Dhavali's case.
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