DATTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is filed challenging the final judgment and order dated 12.2.2007, passed by the Additonal Sessions Judge, Omerga in Sessions Case No. 23 of 2005. By the impugned judgment and order the appellant herein is convicted for the offence punishable under Section 302 of I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- i/d to suffer R.I. for six months. He is also convicted for the offence punishable under Section 498-A of I.P.C. but no separate sentence is awarded. The accused is in jail since 13.9.2005. Therefore, the learned Judge of the Trial Court has given set off of the said period.

(2.) The background facts of the case are as under:- On 29.8.2005, the appellant accused asked his wife deceased Rukminibai to give him amount from her wages. Deceased Rukminibai informed the appellant that she did not have any money. Upon which, the accused beat Rukminibai, she left house in a fit of anger. The appellant accused followed her and brought her back to home and then again beat her with fist and kick blows and asked her as to how she went out of the house. The appellant took kerosene lamp, sprinkled kerosene from that lamp on the person of deceased Rukminibai and set her on fire. Thereafter, the appellant tried to extinguish the fire. His hands were also burnt. Deceased was admitted to government Hospital. The appellant was tried before the trial Court under Section 498- A and 302 of I.P.C. The trial Court also framed alternative charge under Section 306 of I.P.C. The defence, which was taken by the accused was that border of the Saree of the deceased was fallen on the earthen stove and it caught fire. The Trial Court after taking into consideration the evidence of prosecution witnesses including the Medical Officer and other evidence, brought on record i.e. spot panchnama at Exh.12, inquest panchnama at Exh.13, Certificate of cause of death at Exh.14, P.M. note at Exh.15, panchnama of recovery of clothes of deceased at Exh.16 and panchnama of arrest at Exh.17 and other evidence brought on record, has convicted the accused for the offences punishable under Sections 302 and 498-A of I.P.C. and he was sentenced to suffer life imprisonment. Hence, this appeal.

(3.) Learned counsel appearing for the appellant (appointed) submitted that dying declaration is recorded by the police constable, instead the dying declaration should have been recorded by the Executive Magistrate. It is further submitted that recording of dying declaration by P.W.3 is not in accordance with the provisions of law. It is further submitted that the Medical Officer who has given endorsement on the dying declaration has not given two endorsements. It was necessary that the Medical Officer should make endorsements on dying declaration or certify that Rukminibai was conscious and was in a fit state of mind to give the dying declaration. Since the dying declaration is not recorded by the Executive Magistrate and Medical Officer has not given endorsement/certificate at the beginning of the recording of the dying declaration to the effect that Rukminibai was in fit state of mind to give dying declaration, the dying declaration suffers from infirmities and same cannot be relied upon. It is further submitted that the evidence brought on record would suggest that deceased Rukminibai was short tempered lady and therefore, she herself might have set herself on fire. It is further submitted that D.W.1, son of the appellant, has stated before the court that border of his mother's Saree was fallen on the earthen stove and as a result Rukminibai caught fire. Therefore, learned counsel would submit that when the son of appellant and deceased Rukminibai have deposed before the Trial Court that the incident took place because of fall of border of Saree on the earthen stove, in that case the appellant is entitled for benefit of doubt. Learned counsel invited our attention to the reported judgment of the Supreme Court in the case of State of Rajasthan Vs. Wakteng, 2007 5 Supreme 183 and contended that though deceased was indoor patient for seven days, the dying declaration is not recorded by the Executive Magistrate. Learned counsel also invited our attention to the various documents, which formed part of the evidence to contend that the appellant is entitled for acquittal.