SURESH GULABRAO DHOLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant-accused was charged under Sections 302 read with Section498-A of the India Penal Code for having committed murder of his wife Kalpana on12.6.95 in the evening between6. 00 p. m. to /8. 00 p. m. THE trial Court convicted the accused-appellant herein for having committed an offence under Section302 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer further Rigorous Imprisonment for one year. He was also convicted under Section498-A of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer further Rigorous Imprisonment for two months. THE trial Court, however, directed both the sentences should run concurrently. THE appellant-accused is challenging the said Judgment and Order in this appeal.

(2.) THE facts are that the deceased Kalpana was the daughter of Ramkrishna Thakre, resident of Karanja Wanipura, District - Akola. She and the accused got married in 1990. THE appellant-accused was resident of Mangrul Chavhala. It is the case of the prosecution that after marriage Kalpana was subjected to illtreatment at the hands of the accused. It was contended that the accused used to raise quarrel with his wife and used to beat her. It is the case of the prosecution that the appellant-accused had told Kalpana that he would finish her. THE accused and Kalpana had two children, one aged five years and other aged three years. It is the case of the prosecution that on9.6.95 Kalpana had gone to him at Karanja with both her children and that time her elder sister Bebi and brother-in-law Bharat Wankhade had also gone to Karanja. It is the case of the prosecution that on11.6.95, appellant-accused Suresh had gone to Karanja and there was a quarrel at night in between the husband and wife and in the morning on12.6.95, the accused-appellant left the house without informing anybody. In the afternoon, Kalpana left the house of her parents and proceeded to go to her matrimonial house with her children and with one Sunita, who was the daughter of her sister Bebi. THEy reached village Ner at about6. 00 p. m. and at about7. 30 p. m. accused raised quarrel with Kalpana as to why she had taken Rs. 200/- from him and, thereafter, it is alleged that he poured Kerosene oil on the person of Kalpana and set her on fire. At that time only the husband and wife were at home. It is alleged that the accused also assaulted her with a stone on her head. It is the case of the prosecution that after she caught fire she ran out of the house and raised hue and cry and people gathered there and, thereafter, the accused tried to extinguish the fire with the help of a quilt. Kalpana was thereafter immediately removed to the hospital. She gave a statement to the Police Constable which was recorded as First Information Report. THEreafter, two dying declarations were recorded by the Executive Magistrate, who had sent the requisition to the Doctor and Doctor had certified that she was in a fit condition to make a statement. THE two dying declarations were recorded by the Executive Magistrate and during recording of the said dying declaration, the Doctor was present. THE accused was also sent for medical examination and the Doctor found burn injuries on the right leg and index finger of the accused.

(3.) LEARNED counsel appearing on behalf of the accused submitted that the only evidence against the accused was in the form of dying declaration and he submitted that Doctor who had given the certificate merely stating that the deceased Kalpana was in a fit condition to make a statement. He submitted that it was the duty of the Doctor to point out whether the patient was mentally and physically fit to make a statement. In the absence of such certificate, he submitted that the dying declaration could not have been relied upon by the trial Court. He further submitted that the second dying declaration is at Exh. 46 which was recorded by the Executive Magistrate was rightly discarded by the trial Court. He, therefore, submitted that there was discrepancy between the two dying declarations which created doubt about the truthfulness about the dying declaration. He submitted that the appellant-accused had tried to extinguish the fire by putting a quilt on the body of the deceased and as a result had also suffered burn injuries on his person. He submitted that therefore if this Court came to the conclusion that the accused had poured Kerosene and had lit the deceased with the means of match-stick, because of his subsequent conduct, he could at the most be convicted under Section304 part-II and not under Section302 of the Indian Penal Code. He also relied on the Judgment of the Apex Court in the case of Smt. Laxmi vs. Om Prakash and others, reported in AIR 2001 SC 2383. LEARNED A. P. P. appearing on behalf of the prosecution vehemently opposed the said submissions made by the learned counsel appearing on behalf of the appellant-accused. He submitted that there was an oral dying declaration which was given to the brother and mother of the deceased and also to the Police Constable, who had recorded First Information Report and apart from that there were two dying declarations which were recorded by the Executive Magistrate at Exh. 42 and Exh. 46. He submitted that even dying declaration Exh. 46 ought to have been relied upon by the trial Court. He relied on the Judgment of the Apex Court reported in 1999 Cr. L. J. page 4582 in support of his submission.