MADAN ALIAS MADHU PATEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal filed under Section 374 of Cr.P.C. arises from the order of conviction and sentence passed in Sessions Case No.91 of 1992 by the learned Addl. Sessions Judge at Nashik on 23rd July 1992 and by the said order the appellant (the sole accused) came to be convicted for the offence punishable under Section 302 of IPC and sentenced to suffer life imprisonment. He was acquitted for the offences punishable under Sections 323 and 504 of IPC. He was arrested on 19/1/1992 and was released on bail after this appeal was admitted on 10/9/1992.

(2.) Latabai, the daughter of Shri Daryavsingh Mohansingh Pardeshi, resident of village Ajan, Taluka Malegaion Dist. Nashik was married to Shri Balusingh Pardeshi, resident of village Ghoti, Taluka Igatpuri, Dist. Nashik for about 13 years and she begot a son from the said wedlock. However, she was deserted by her husband and continued to stay in village Ghoti while working as a construction labour. Her son was staying with PW 2 Daryavsingh Mohansingh Pardeshi and she was living alone at village Ghoti and for 4-5 years prior to the date of the incident, she was the mistress of the accused who was married to some other lady. The accused was also resident of village Ghoti and was working as a meson. On 13/12/1991 while Latabai was in her house in the evening between 7 to 7.30 p.m. the accused went to her and asked her to cook but she declined to do so on the pretext that there was shortage of kerosene in the house. The accused got annoyed and started beating her. However, while she started cooking, the accused poured kerosene on her person and set her on fire with a matchstick lying nearby. With the burn injuries she came out of her house shouting "Save me, Save me". The neighbours heard the shouts and in the mean while the accused tried to extinguish the fire, put a chaddar around her person and when the neighbours arrived at the spot, he ran away. He also sustained burn injuries while extinghishing fire while rescuing Latabai. The neighbours took her to the Civil Hospital at Ghoti and from there she was shifted to the Civil Hospital at Nashik with more than 85 per cent burn injuries. While under treatment, she died on 16/12/1991 but on 14/12/1991 her dying declarations were recorded by PW 1 - Jayprakash Chavan, Special Judicial Magistrate and PW 12 Nivrutti Baburao Godhade, the Police Head Constable and in both these dying declarations the deceased had stated that she was set on fire by the accused. The accused had sustained 40 per cent burn injuries and he was also hospitalised till 16/1/1992. He was arrested on 19/1/1992. Initially the investigation was undertaken by PW 11 " Prabhakar Jadhav who was working as PSO at Ghoti Police Station and had registered Crime No.76/91 on the basis of the statement recorded by Police Constable Godhade - PW 12. However, after 15/12/1991 the investigation was taken over by PW 9 " Balkrishna Kulkarni, ASI and again on 16/1/1992 PW 11 reported for duty and conducted further investigation. CA report was received at Exhibit 32. The dead body of Latabai was sent for post mortem which was conducted by Dr. Ramesh Agarwal, - PW 6, Medical Officer at Civil Hospital, Nashik. On completion of investigation the charge-sheet came to be filed and the case was committed to the Sessions Court which framed the charge on 26/6/1992

(3.) The prosecution examined in all 12 witnesses and PW 2 Daryavsingh Pardeshih, was the father of the deceased. PW 5 " Nandu Shingole, PW 7 Satayabhamabai Shinde, both neighbours, turned hostile. Similarly the panch witnesses PW 3 " Shankar Mande and PW 4 " Dattu Ambekar also turned hostile. PW 8 " Dr. Praksh Keshav Kotkar was the Medical Officer on duty at Civil Hospital, Nashik when the dying declarations of the deceased were recorded by PW 1 and PW 12. The prosecution case is thus based on two written dying declarations and the oral dying declarations made by the deceased to PW 2, PW 5 and PW 7. However, all these three witnesses i.e. PW 2, PW 5 and PW 7 turned hostile and, therefore, the oral dying declarations as relied upon by the prosecution could not be proved. We are, therefore, required to examine whether the impugned order of conviction and sentence is sustainable only on the basis of the written dying declarations of the deceased as recorded by PW 1 Jayprakash Chavan and PW 12 Nivrutti Godhade. The accused denied the charge and while recording the statement under Section 313 of Cr.P.C. he has taken a specific defence which is required to be considered from the questions and replies reproduced hereinbelow.