MADHUKAR PANDITRAO WAGHMARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the conviction of the appellant for the offences punishable under Sections 498A and 306 of the Indian Penal Code, by the learned Additional Sessions Judge. Kolhapur, and the sentence of rigorous imprisonment for 2 years and 3 years with fine of Rs. 500/- or in default rigorous imprisonment for one month each, imposed on the two counts respectively, by the learned Judge, on conclusion of trial of Sessions Case no. 254 of 1991. Facts which are material for deciding this appeal are as under:

(2.) I have heard learned counsel for the appellant and the learned Additional Public Prosecutor for the state. With the help of both, I have gone through the evidence on record. There is no dispute that victim died as a result of 90% burns which she suffered. This can be seen from the notes of postmortem examination at Exh. 16. The evidence of P.W. 1 Nandkumar Thorat, panch at the panchnama of spot, is of no use. He turned hostile. P.W. 2 Tarabai the victim's mother, P.W. 3 Kamal victim's sister and P.W. 4 Rekha, neighbour had refused to support the prosecution. P.W. 5 the Executive Magistrate Shri. Yadav recorded dying declaration of the victim after the victim was certified by P.W. 6 Dr. Priyadarshini Ghodake, to be fit for being questioned. In this dying declaration the victim stated that on the incidental morning, there was quarrel between her and her husband as well as the other in laws. This quarrel was on account of some domestic differences. Her husband bet her up. She also stated that her in-laws abused her and the mother-in-law spits on seeing her. She stated that her husband on return from work on the some days and, after listening his parents, ill-treats her or states that he would send her to her parent's house. She also seem to have stated that she had been married to a widower. She then stated that at 9.00 a.m. she poured kerosene on her person and set herself on fire. She stated that her husband and in-laws tried to stop her. She also stated that her husband extinguished the fire and brought her to the hospital yet she concluded by stating that she had a grievance against husband and in-laws.

(3.) P.W. 7 Narayan Dongane also stated having recorded victim's report which is at Exh. 30 at about 1.30 p.m. on the same day, in which victim had made similar statement. The cross examinations of P.W. 5 Special Executive Magistrate and P.W. 6 Dr. Priyadarshini Ghodake does not indicate anything to cast a doubt about dying declaration recorded vide exh.25. Learned Senior counsel for the appellant, however, submitted that it is doubtful whether the victim was in a position to make such dying declaration since she had suffered 90% burns and died soon after the incident. He also pointed out that ordinarily when recording of dying declaration begins after the Medical Officer examining the victim and certifies her to be fit, such endorsement ought to appear at the top of the dying declaration. However here, the endorsement of the Medical Officer is in the margin. He submits that this casts a doubt as to whether the Medical Officer had in fact examined the victim or not.