SK LATIF SK MUNNU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Appellant was tried for the murder of his mistress Bismillabi under section302 of the Indian Penal Code. THE trial Court vide Judgment dtd. 10.1.1997 found the appellant guilty for the said charge and sentenced him to suffer life imprisonment and fine of Rs. 2000/-, in default, R. I. for two months. THE under trial period was set off in terms of section428 of Cr. P. C. . THE appellant challenges his conviction and sentence in this appeal.

(2.) THE prosecution case, in brief, is that deceased Bismillabi was the mistress of the appellant and that at times he used to stay with her. On 12.9.1992 one Madhu alongwith his sister had come to the house of the deceased. At that time, the appellant was not present. When the appellant returned at about5. 00 p. m. and was told by the deceased that Madhu alongwith his sister had come and she had given her Rs. 20/- to go back, the appellant became angry and abused the deceased. THE deceased told the appellant that for 8 years she is keeping relations with him and on account of the same her relations with her sister had become strained and as such she questioned as to why the appellant was keeping relations with Madhu's sister. THEreupon the quarrel started and the appellant assaulted the deceased and pressed her neck. THE appellant then told the deceased he would finish her. He went to the kitchen, brought kerosene container and poured kerosene on the deceased. THEreafter, the appellant went outside in the court yard and sat on the cot. THE kerosene on the person of the deceased was wiped with the help of towel by her daughter Mumtazbi (P.W.2) and others. Subsequently, at about7. 00 p. m. when the deceased was sitting at the door of the Drawing Room, the appellant lighted a match stick and threw it on her person, as a result of which, she suffered 42% burns. She was taken to the Hospital where her dying declaration was recorded by the Executive Magistrate (P.W.4 ). THE prosecution had examined Mumtazbi (P.W.2) daughter of the deceased in respect of the entire episode and also relied upon the dying declaration of the deceased recorded by the Executive Magistrate. THE trial Court accepted the evidence and recorded conviction of the appellant.

(3.) THE learned Advocate for the appellant urged before us that the dying declaration recorded by the Executive Magistrate can not be relied upon in the light of the various pronouncements of the Apex Court since the Doctor, prior and after recording of the dying declaration, had not recorded the certificate that the deceased was in a fit state of mind and capable of making statement. On this aspect, the learned Advocate for the appellant has relied upon the case of Paparambaka Rosamma and others Vs. State of Andhra Pradesh, reported in AIR 1999 Supreme Court, page 3455, Smt. Laxmi Vs. Om Prakash and others, reported in AIR 2001 Supreme Court 2383 as also Uka Ram Vs. State of Rajasthan reported in AIR 2001 Supreme Court, 1814. It is next urged by the learned Advocate for the appellant that according to the Medical Evidence the hands and fingers of the deceased had burnt and as such it is not possible to obtain thumb impression of the deceased on the dying declaration. THE next submission made by the learned Advocate for the appellant is that on the bed head ticket the history recorded by Dr. Kishor Sharma (P.W.5) is that it was a case of accidental burn injury by Oven (Shigdi) and in the light of this bed head ticket, which has to be for all purposes treated as dying declaration of the deceased under section32 of the Evidence Act, the dying declaration subsequently recorded by the Naib Tahsildar (P.W.4) can not be accepted or believed since the same is directly contradictory to the earlier dying declaration of the deceased which was recorded by P.W.5 Dr. Kishor Sharma on the bed head ticket (Exh. 45 ). In this respect, the learned Advocate for the appellant has placed reliance on number of rulings on the question that where the history was given by the victim; the same can be looked into by the Court as also that normally the history given by the patient is normal rule which is required to be followed in appreciating the bed head ticket (Exh. 45 ). THE rulings upon which the reliance has been placed are in the case of Janabai Ranu Patole and another Vs. THE State of Maharashtra, reported in 1997 ALL MR (Cri.) 1157; Sitaram Sahadu Borade Vs. THE State of Maharashtra, reported in 1998 ALL MR (Cri.) 1193; Dilip Vs. State of Maharashtra, reported in 1996 (3) Crimes 368 and Bhagirath Bhaurao Kanade Vs. THE State of Maharashtra, reported in 1996 (4) Crimes 65 : (1997 ALL MR (Cri) 362 ).