FATTESINGH PANCHAM GHODKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant Fattesingh s/o Pancham Ghodke, was tried by the 6th Additional Sessions Judge, Nagpur on the charge of having committed murder by intentionally and knowingly causing death of his wife Smt. Sharda w/o. Fattesingh Ghodke by means of pouring kerosene on her person and setting her on fire on 3-8-1994 at about 2. 30 p. m. in Shatabdi Nagar, Nagpur. The learned trial Judge found the accused guilty and by his judgment and order dated 24-11-1995, convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- or in default to suffer R. I. for 6 months, which is a matter of challenge in this appeal.

(2.) IT is the prosecutions case that the appellant/accused was married to Sharda in the year 1991 and they started residing in the area known as Vakilpeth, Nagpur. Sharda was illtreated by the appellant/accused as he suspected her character and was also in the habit of demanding money. On one occasion, the appellant/accused had also injured her by Gupti. On being injured, Sharda was brought to her mothers house at Shatabdinagar, Nagpur. Within 8 days, the appellant/accused also went to Shatabdinagar, Nagpur and started residing with them. At her mothers place also, the appellant/accused used to treat his wife with cruelty and often used to beat her. He did no work and used to pass his time in smoking Ganja. On 3-8-1994, there was no one at home i. e. Smt. Indubai (P. W. 1) mother of the deceased Sharda had gone to attend her grocery shop. The appellant/accused quarrelled with Sharda suspecting her fidelity and poured kerosene on her person and set her on fire. Because of this and probably due to the alarm raised by Sharda, the attention of the neighbours was attracted. Muktabai (P. W. 3) and one Geetabai saw Sharda coming out of her house while burning and they saw the appellant/accused running away from the place. The neighbours extinguished the fire and Sharda was taken to hospital in a rickshaw by them. Geetabai then went to the shop of Indubai and informed her about the incident. On Sharda being admitted to Medical College and Hospital, Nagpur in burnt condition an intimation was given to the police at the police booth in Medical College and Hospital. On receiving such information, Head Constable Bhaurao (P. W. 5) went to the ward No. 39 where Sharda was admitted and met the Medical Officer. He gave a request letter to the Medical Officer on duty to give his opinion as to whether the patient (Sharda) was in a condition to give her statement and after the Medical Officer certified that the patient was in a fit condition for giving statement, he went to the room and made enquiries from the injured and recorded her statement (Exhibit 39 ). In her statement given to Head Constable Bhaurao, Sharda gave all the particulars about her marriage with the appellant/accused, that she has a 2 year old daughter and was pregnant, her husband used to suspect her character and therefore, used to quarrel with her and beat her. Due to the cruel behaviour of her husband, she was residing with her mother Indubai at Shatabdi Nagar, Nagpur and that on that day, her husband quarrelled with her and poured kerosene on her person and set her on fire. There was no one in the house and this is how she has sustained burns on her both hands, breast portions, abdomen, thighs, back and buttock portions and Geetabai, a woman residing in her neighbourhood had brought her and admitted her in the Medical College, Hospital for treatment, and this is how she was there on bed No. C/3, in ward No. 39 and undergoing treatment. This report received by Head Constable Bhaurao was then forwarded to Police Station, Ajni. P. S. I. Akhtar who was on duty at the Police Station, deputed Shri Devidas (P. W. 4) to visit Medical College and record the statement of Sharda. On this, Head Constable Devidas visited Medical College and Hospital, Nagpur and approached the Medical Officer for seeking his permission to record the dying declaration and as the Medical Officer certified that the patient was fit for giving statement, he recorded the statement of Sharda Fattesingh Ghodke, which is at Exhibit 34. In this statement also, Sharda narrated the same story which she has given to Head Constable Bhaurao in her report Exhibit 39. The report Exhibit 39 was treated as F. I. R. and Crime No. 244/94 came to be registered against the appellant/accused for having committed an offence under section 307 of I. P. C.

(3.) THE police, on registering F. I. R. Exhibit 49, sent a requisition to Shri Manohar Gajbhiye (P. W. 2), Special Judicial Magistrate, Nagpur to record the dying declaration of Sharda. On receiving such request, Shri Gajbhiye (P. W. 2) visited the Government Medical College and Hospital at about 9. 00 p. m. and gave a requisition to the Medical Officer of ward No. 39 for giving permission to him for recording the statement of Sharda and also to give his opinion as to whether Sharda was in a condition to give her statement. On the Medical Officer certifying that the patient is fit for giving statement, Shri Gajbhiye (P. W. 2) recorded the dying declaration of Sharda which is at Exhibit 31. In the dying declaration Exhibit 31, Sharda gave the same story that her husband poured kerosene from the can on her person and set her on fire with the help of a matchstick and ran away and this was because he was suspecting that she is having illicit relationship with other persons.