RAJ KUMAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Leave granted.

(2.) The appellant has challenged judgment dated September 25, 2006, rendered by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No. 230 of 2002 by which decision dated February 21, 2002, passed by the learned 2nd Additional Sessions Judge, Yavatmal in Sessions Trial No. 108 of 1995 convicting him for the offences punishable under Sections 302 and 498A IPC and sentencing him to suffer R.I. for life and fine of Rs. 500/- in default imprisonment for one month for commission of offence punishable under Section 302 as well as R.I. for one year and fine of Rs. 500/- in default imprisonment for one month for commission of offence punishable under Section 498A, is confirmed.

(3.) From the record of the case following facts emerge. The appellant was married to deceased Pramila. The incident in question took place on November 12, 1994. During the subsistence of marriage the deceased gave birth to a boy named Sangam. The appellant used to ill-treat the deceased. Therefore, her brother Ishwar Sambhaji Kahire brought her to Village Belora. A compromise took place and, therefore, the deceased was sent to her matrimonial home. However, thereafter also the appellant continued to ill-treat the deceased. Therefore, her brother again brought her back to Village Belora. As the deceased had no means to sustain herself and her son, she had filed proceedings under Section 125 of the Code of Criminal Procedure, 1973 for obtaining maintenance from the appellant. The brother of the deceased took a room on rent for the deceased and her son at Wani belonging to one Dadaji Shankar Ganfade. The deceased and her son aged four years were residing in the said rented room and the boy was taking education. After about one and a half months the appellant started visiting the deceased and pressurizing her to withdraw the proceedings initiated for getting maintenance. On November 11, 1994, the appellant went to the room of the deceased in the evening time from his village Lalguda and asked the deceased to withdraw the maintenance proceedings. However, as the deceased had no means to maintain herself and her son, she refused to withdraw the proceedings. Again on November 12, 1994 at about 4.00 A.M. in the morning the appellant went to the room of the deceased. At that time the deceased and her son Sangam were sleeping. The appellant came there under the influence of liquor. On door being knocked by the appellant, the deceased opened the door and that is how the appellant entered the room occupied by the deceased. On entering the room the appellant pressed the neck of the deceased but the deceased got herself released from the clutches of the appellant. Thereafter, the appellant took up an iron Polpat, i.e., Stone Rolling Pad and inflicted a blow on the head of the deceased. Because of the injury sustained by her, the deceased started bleeding. The appellant took some amount lying in the room and ran away. The son of the deceased started weeping loudly. His cries attracted the attention of the landlord Dadaji Shankar Ganfade. Dadaji in turn woke up his wife and other tenants and rushed to the room occupied by the deceased. On entering the room, he found that the deceased was lying injured seriously. On enquiry being made, the deceased told him and other tenants that as she had refused to withdraw the maintenance proceedings, her husband had inflicted blow on her head with a stick. The landlord of the house and other tenants immediately shifted the deceased to Wani Hospital. The Medical Officer, who was in-charge of Rural Hospital, Wani, sent an intimation to the Police Station, Wani at about 5.00 A.M. that one woman named Pramila was admitted in the hospital in an injured condition. The P.S.O., Wani Police Station, sent a requisition to the Executive Magistrate for recording dying declaration of the deceased in the very morning itself. On receipt of the requisition, the Executive Magistrate went to the Rural Hospital, Wani and recorded the dying declaration of the deceased at about 6.30 A.M. The P.S.O., Wani Police Station also directed Head Constable Ashok Dudhane to go to Rural Hospital, Wani, and record the dying declaration of the deceased. Accordingly the Head Constable went to the hospital and recorded the dying declaration of the deceased. After going through the contents of the dying declaration the Head Constable himself became the first informant and filed his complaint. On the basis of the First Information Report lodged by the Head Constable Ashok Dudhane the P.S.O., Wani Police Station registered crime No. 195 of 1994 for the offence punishable under Section 324 IPC against the appellant. Head Constable Ashok Dudhane issued a letter to the Medical Officer, in-charge of Rural Hospital, Wani for medical examination of the deceased and accordingly the deceased was examined by the Medical Officer. However, the condition of the deceased started deteriorating. Therefore, she was referred to Chandrapur Hospital from where she was referred to Government Medical College and Hospital at Nagpur. On learning that her sister was admitted to Nagpur Hospital with serious injuries, her brother Ishwar Sambhaji Kahire went to the said hospital where the deceased made oral dying declaration before him that the appellant had beaten her by means of stick as she had refused to accede to his pressure tactics to withdraw the maintenance proceedings. The Investigating Officer prepared spot panchnama and seized iron Polpat used in the commission of crime. It may be mentioned that the deceased had referred to assault on her with stick because she was lying on bed and could not have seen or identified the weapon when assaulted. Blood stained chadar from the spot was also attached. The Investigating Officer recorded statements of those persons, who were found to be conversant with the facts of the case. In spite of treatment given to the deceased at the Government Medical College and Hospital, Nagpur, she succumbed to her injuries at 10.30 A.M. on November 19, 1994. The Medical Officer, in-charge of the Hospital, conducted Post Mortem. The Investigating Officer was searching for the appellant but the appellant was found absconding. Ultimately he was arrested on November 28, 1994. The incriminating articles seized were sent to Forensic Science Laboratory for analysis. On completion of investigation, the appellant was charge-sheeted in the court of learned Judicial Magistrate, First Class, Wani for commission of offences punishable under Section 302 and 498A IPC. As the offence punishable under Section 302 IPC is exclusively tried by a court of sessions, the case was committed to Sessions Court, Yavatmal for trial. The learned Sessions Judge framed charge against the appellant at Exh.-18 for commission of offences punishable under Section 302 and Section 498A of the IPC. The charge was read over and explained to the appellant. However, the appellant did not plead guilty to the charge and claimed to be tried. Therefore, the prosecution examined 11 witnesses and produced documentary evidence to prove charge against the appellant. After examination of the witnesses was over, the learned Judge explained to the appellant the incriminating circumstances appearing against him in the evidence of prosecution witnesses and recorded his statement under Section 313 of the Code of Criminal Procedure. In the further statement, the case of the appellant was that of total denial. However, he did not examine any witness in support of his defence.