PANDURANG MAROTRAO GIRALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for subjecting his wife Rekha with cruelty as also her murder under sections 498-A and 302 of the Indian Penal Code. In support of the said charges, the prosecution had examined ten witnesses. The trial Court vide judgment dated 10-1-1997 found the appellant guilty of both the charges. The appellant has been sentenced to undergo life imprisonment as also fine of Rs. 500/-, in default, R. I. for six months. He has also been sentenced to undergo R. I. for two years and fine of Rs. 300/-, in default R. I. for three months under section 498-A of the Indian Penal Code. The substantive sentences are ordered to run concurrently. The appellant was given benefit of period of detention which was set off under section 428 of the Code of Criminal Procedure. The appellant challenges his conviction and sentences in this appeal.

(2.) THE prosecution case, in brief, is that the appellant had married the deceased, who was divorcee. After marriage, the appellant started suspecting her character and used to quarrel and assault her after drinking liquor. The deceased had lodged a complaint with the police in respect of assault by the appellant on 27-5-1993. On 25-10-1993, in the evening, the deceased had gone to her parents house which was just across the road from her house and complained that the appellant had assaulted her by throwing pat on her, on account of which, she has received injury over the cheek. Her parents advised her to go back to the house. The appellant had also come and he also went back to his house. After some time, the incident in question took place. When the parents of the deceased reached the house of the appellant, they saw that the appellant was taking the deceased in a rickshaw to the hospital. They also went to the hospital. In the hospital, her dying declaration was first recorded by Head Constable which is at Exhibit 69. After about half an hour, her dying declaration was recorded by the Executive Magistrate, which is at Exhibit 63. The police recorded another dying declaration on 28-10-1993 after which the crime was registered. The deceased died on 29-10-1993. She had suffered 97 percent burns. The learned Additional Sessions Judge, after placing reliance on dying declaration (Exhibit 63) which was recorded by the Executive Magistrate as also the other circumstances, recorded the conviction of the appellant. The learned Additional Sessions Judge, however, discarded the dying declaration (Exhibit 69) and dying declaration (Exhibit 67 ). The defence of the appellant was that he was at the house of his in-laws at the time of the incident and did not know how his wife was sent on fire.

(3.) LEARNED Advocate Shri Daga for the appellant urged before us that there are three dying declarations on record; that there are inter se variations between the three dying declarations and on account of the said variations the appellant is entitled to benefit of doubt. In this respect, he has relied upon the judgment of the Apex Court in (Smt. Kamla v. State of Punjab) reported in A. I. R. 1993 S. C. 374. He further, submitted before us that the trial Court erred in believing dying declaration (Exhibit 63) recorded by the Magistrate, since in the dying declaration (Exhibit 69), which had been recorded by the police only about half an hour prior to that, the deceased had stated that she had ignited the stove which then flared up and she caught fire due to stove. He also urged before us that the police did not register any offence after the dying declaration was recorded by the Executive Magistrate, but continued with the enquiry into the crime and it is only after police again recorded dying declaration (Exhibit 67) of the deceased on 28-10-1993 that the crime was registered; that there has been delay in recording the F. I. R. on account of which there is reason to believe that the dying declaration by the Executive Magistrate had not been recorded on 25-10-1993. It was also urged by the learned Advocate for the appellant that the contents of the dying declaration (Exhibit 63) have not been specifically put to the accused and to the statement recorded under section 313 of the Code of Criminal Procedure and as such the same cannot be used against the appellant. He, therefore, contends that the appellant be acquitted of the charges.