DHANRAJ KISANA RAUT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants were tried for the murder of Sindhubai W/o Ramesh Kelbaji Raut by setting her on fire under Section 302 read with 34 Indian Penal Code. THE husband of Sindhubai viz. Ramesh Kelbaji Raut was also charge-sheeted along with the appellants for the said offence, but he was absconding and the trial proceeded against the appellants who have been convicted by the trial Court for the murder of Sindhubai under Section 302 read with 34 Indian Penal Code. THE appellants have been sentenced to rigorous imprisonment for life and fine of Rs. 100/- each in default to further undergo rigorous imprisonment for one month. THE conviction and sentence is challenged by the appellants in this appeal.

(2.) THE prosecution had examined 11 witnesses in support of the charge. THE prosecution case, in brief is that, deceased Sindhubai was married with absconding accused Ramesh about3 years prior to the date of incident; absconding accused Ramesh used to harass and ill-treat Sindhubai; accused Laxmibai and Krishna used to instigate absconding accused Ramesh to leave Sindhubai and that a few days prior to the incident in question, there was a quarrel between the absconding accused Ramesh, Laxmibai, Sukhdeo, Subhash and Krishna's wife so as to drive Sindhubai out of the house. Some days prior to the incident, deceased Sindhubai and her husband - absconding accused Ramesh had gone to the parental house of Sindhubai and from there they returned along with Umesh P. W. 1 who is the younger brother of Sindhubai.

(3.) WE have heard learned advocate for the appellants and learned Additional Public Prosecutor at length and we shall deal with their submissions with reference to the evidence on record. The learned advocate for the appellants has, to start with, urged before us that none of the two dying declarations can be relied upon, since the doctor had not certified the fitness of deceased Sindhubai for the purpose of giving statement before or after the recording of the said dying declarations. It was also pointed out that the evidence on record suggests that the two dying declarations were recorded simultaneously and in this connection our attention was drawn to the evidence of P. W. 4 Mahadeo, P. W. 7 Executive Magistrate ( Naib Tahsildar ) and P. S. I. P. W. 9 Sheshrao. It is true that apparently on the face of it the contention of the learned advocate for the appellants may appear to be correct, but the record makes it clear that the two dying declarations were recorded separately at different times. The learned advocate for the appellants has argued that according to P. W. 9 Sheshrao, the dying declaration was recorded between 11 to 11.30 A. M. by him in the presence of P. W. 4 Mahadeo who in turn had stated that he got the information at about12. 30 noon. It was also pointed out by the learned advocate for the appellants that according to P. W. 7 Executive Magistrate, he had recorded the dying declaration of Sindhubai between 11 A. M. to 11.45 A. M. The record at Ex. 57 which is a station diary entry shows that a memo was received from Public Health Centre by the Police Station at 11 A. M. informing the police that Sindhubai Ramesh Raut had been admitted in the hospital on account of sustaining burns. According to P. S. I. P. W. 9, he had reached P. H. C. within 10 minutes of the receipt of the said information from P. H. C. , which according to him had been received at 11 A. M. Thereafter, P. S. I. P. W. 9 had recorded the statement of Sindhubai. According to him, he had recorded the statement of Sindhubai between 11 to 11.30 A. M. in the presence of Mahadeo P. W. 4 and Pandurang. It is no doubt true that Mahadeo has stated that he reached the hospital at 12.30 noon, but it has to be noted that P. W. 4 Mahadeo is an agricultural labourer and will not have much sense of time. Hence the timing given by him may not be exact and the timing deposed to by P. S. I. has to be taken as correct. The record further shows that P. W. 7 Executive Magistrate had recorded dying declaration of Sindhubai at 11.45 A. M. The said dying declaration is Ex. 52.It is also pertinent to note at this stage that letter written by Police Station Officer, Warud to the Tahsildar for recording the dying declaration of Sindhubai was received by Tahsildar at 11.15 A. M. This position is crystal clear from letter Ex. 30 on record. According to the Executive Magistrate P. W. 7, Tahsildar had directed him to record the dying declaration which means that Executive Magistrate P. W. 7 must have reached the hospital after 11.30 A. M. As already pointed out, dying declaration Ex. 52 shows that the recording of the same started at 11.45 A. M. There appears to be apparent error on the part of Executive Magistrate P. W. 7 when he has stated that he had recorded the statement of Sindhubai at 11 A. M. completed it at 11.45 A. M. , whereas the record clearly shows that the dying declaration was recorded by him at 11.45 A. M. Thus, there is no force in the contention of the learned advocate for the appellants that the two dying declarations were recorded simultaneously. In fact, the two have been recorded one after the other, the first one by the police and the second one by the Executive Magistrate P. W. 7.