DNYANESHWAR ANANDRAO RAHATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CRIMINAL Appeal No. 329/97 has been filed by the original accused No. 1 challenging the judgment and order passed by the Additional Sessions Judge, Wardha in Sessions Trial No. 140/96 dated 7-7-1997 whereby he has been convicted by the trial Court under section 302 and is sentenced to undergo R. I. for life and further to pay a fine of Rs. 2500/- in default to suffer R. I. for 6 months. Criminal Appeal No. 355/97 has been filed by the State of Maharashtra challenging the order of acquittal passed by the same Judge in Sessions Trial No. 140/96 whereby he acquitted the original accused No. 2 in the said trial. Since the judgment delivered by the trial Court in both these appeals, is common, we propose to hear and dispose of both these appeals by a common judgment.

(2.) THE appellant in Criminal Appeal No. 329/97 Dnyaneshwar Anandrao Rahate, the original accused No. 1 in Sessions Trial No. 140/96 and the respondent in Criminal Appeal No. 355/97 Sau Anjanabai, original accused No. 2 both were charged under sections 498-A, 302 read with section 34 of the Indian Penal Code for having committed murder of Suman who was the first wife of accused No. 1 Dnyaneshwar on 21-7-1996. The appellant Dnyaneshwar and respondent Anjanabai are hereinafter referred to, for the sake of convenience, as original accused 1 and 2 respectively.

(3.) THE case of the prosecution, in nutshell, is that the original accused No. 1 Dnyaneshwar had two wives. Deceased Suman was the first wife and Anjanabai the original accused No. 2 was the second wife. It is the case of the prosecution that since deceased Suman was allegedly infertile, the accused No. 1 had married accused No. 2 Anjanabai and both wives were staying in the same house with original accused No. 1. It is the case of the prosecution that on 20-7-1996 the accused No. 1 had a quarrel with deceased Suman and that he did not give food to her in the evening. It is the further case of the prosecution that in the early morning the accused quarrelled with deceased Suman and thereafter poured kerosene on her person and set her ablaze as a result of which Suman received 93% burn injuries. Accused No. 1 took up Suman to Cottage Hospital, Hinganghat at about 7 a. m. where Dr. Parate admitted her in the hospital and informed the police P. S. I. Dhaberao to come to the hospital to ascertain as to whether Suman was in a proper condition in order to give statement. P. S. I. Dhaberao, after having ascertained from Dr. Parate that she was in a fit state and conscious to make a statement, her statement was recorded as F. I. R. In the said statement, Suman stated that accused No. 1 had poured kerosene on her person and had set her on fire. After the said statement was recorded as F. I. R. the said P. S. I. Dhabekar registered the offence against the accused. Thereafter, requisition was sent to the Executive Magistrate for recording dying declaration and accordingly the dying declaration was recorded by the Executive Magistrate who first obtained a certificate from Dr. Parate that the patient was in a fit condition to make a statement. After having recorded the endorsement of Dr. Parate that the patient was in a fit condition to give statement, her statement was recorded by the Executive Magistrate in a question and answer form. It is the case of the prosecution that the dying declaration was read over to her and her thumb impression was obtained on the dying declaration.