WASUDEO NINAJI SAKALKALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) TWO brothers namely Wasudeo Ninaji and Gajanan Ninaji and their mother Dhrupadabai Ninaji (appellants herein) and Narmadabai Gajanan, original accused no.3 were tried for the offences under sections 302 and 498-A of I. P. C. for murder of Jyoti w/o appellant Wasudeo and also for subjecting her to ill-treatment and cruelty. The Second Additional Sessions Judge, Khamgaon in Sessions Trial No. 2 of 1998, by judgment dated-21-2-1999, found the appellants guilty for the offence u/s 302 r/w 34 of I. P. C. and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each in default to suffer further rigorous imprisonment for three months and also convicted Wasudeo (appellant no.1) and Drupadabai (appellant no.3) for the offence under section498-A of I. P. C. and sentenced them to suffer rigorous imprisonment for one year each and to pay a fine of Rs. 200/- each in default to suffer further rigorous imprisonment for three months. However, Narmadabai Gajanan (original accused no.3) was acquitted of the offences under sections 302 and 498-A of Indian Penal Code. The appellants have filed the present appeal challenging the order and judgment of conviction and sentence passed against them.

(2.) THE prosecution case, in brief is that victim Jyoti was daughter of Rajaram Wankhede (P. W.1) and Pramila Rajaram Wankhede (P.W.2) and she was married to appellant Wasudeo on8-5-1997. Appellant no.2 Gajanan is real brother of appellant Wasudeo and original appellant no.3 Narmadabai is his wife and appellant no.3 Dhrupadabai is mother of appellants Wasudeo and Gajanan. After marriage, Jyoti had been to the house of appellant Wasudeo for co-habitation at village Poraj, Tq. Khamgaon. Admittedly, after one month of marriage and before Akhadi Festival, Rajaram had been to village Poraj to fetch his daughter Jyoti for Akhadi Festival and after having stayed for a night there, brought with him Jyoti to his house. Jyoti told her father that her husband was accusing her as Zamli (lethargic) and that original accused no.3 and appellant Dhrupadabai were telling appellant Wasudeo that deceased Jyoti was not doing house hold work and that, at the instigation of appellants and Narmadabai, appellant Wasudeo used to beat her. Rajaram brought Jyoti to his house at village Dhanegaon where she lived for few days and appellants Wasudeo and Gajanan came to his house after about a month to fetch Jyoti. However, he did not send Jyoti with them as Jyoti had complained of ill-treatment at the hands of appellants while she was living in matrimonial home. Again on5-10-1997, appellants Wasudeo came to the house of Rajaram for fetching Jyoti and on assurance given by him as not to ill-treat Jyoti, Rajaram and his wife Pramilabai agreed to send Jyoti with him for co-habitation and accordingly, Jyoti alongwith appellant Wasudeo left for their village Poraj on7-10-1997. It is claimed by witness - Pramilabai that she had also accompanied Jyoti and appellant no.1 and they came to village Ghatpuri where witness Ratan Sasawe (P.W.8), who is matrimonial uncle of Jyoti, was residing. Jyoti and appellant Wasudeo having stayed at the house of Ratan for a night, on the next day went to village Poraj. On the next day i. e on8-10-1997, as per prosecution case, early in the morning around 5. 00 A. M. when Jyoti woke up and went to the kitchen, appellant Wasudeo pressed her mouth, appellant Dhrupadabai caught hold her both hands and appellant Gajanan and his wife Narmadabai poured kerosene on her person and set her on fire with lighted match stick. Jyoti sustained extensive burn injuries. She was taken to the General Hospital, Khamgaon.

(3.) BEFORE the learned Additional Sessions Judge, all the accused stood charged of the offences under sections 302 and 498-A of be Indian Penal Code vide charge Exh.21. The accused pleaded not guilty and claimed to the tried. Their defence is that of total denial. But, from the tenor of cross-examination of witnesses and giving emphasis on the fact that appellant Gajanan sustained burn injuries while extinguishing fire, defence has propounded theory of suicidal death and in support thereof, defence examined Pandit Telang (D. W.1), Tukaram Karankar (D. W. 2), Pramod Borade (D. W. 3), Gopalsingh Ingle (D. W. 4) and Baldeo Tangade (D. W. 5) as witnesses in defence. At trial, prosecution examined in all fourteen witnesses which includes parents of Jyoti namely Rajaram (P. W.1), Pramila (P.W.2), Kisan Herode (P.W.3) who acted as a panch in whose presence spot panchanama (Exh. 42) was prepared, Vijay Wankhede (P.W.4), who is cousin of Rajaram who claimed that Jyoti when returned to her parent's house for Akhadi festival, visited his house and told about ill-treatment at her matrimonial house from all the accused persons and that after receiving message, he accompanied Rajaram and Shriram and went to the General hospital, Khamgaon where Jyoti told him that she was set on fire by all the accused persons by pouring kerosene on her person, Gautam Sardar (P.W.5) a panch witness in whose presence shirt of the accused was seized under seizure memo (Exh. 45) and as per report of C. A. (Exh. 38), detection of kerosene residue was positive, Dr. Keshav Methe (P.W.6), and Dr. Pallavi (P.W.7) who conducted autopsy on the dead body and prepared postmortem report (Exh. 47), Ratan Sasawe (P.W.8), who is maternal uncle of deceased Jyoti at whose house Jyoti alongwith appellant Wasudeo and her mother Pramilabai had stayed for a night and on receiving message that Jyoti sustained burns and was admitted in the General Hospital, Khamgaon, he went there and when asked Jyoti as to what happened to her, she told him that accused nos. 1 to 4 set her on fire, Chandrashekhar Sonune (P.W.9), Naib - Tahsildar-cum-Executive Magistrate who recorded the dying declaration (Exh. 53) of Jyoti after Dr. Ashok (P. W.12) examined her and certified that she was well-oriented, conscious to give statement, Sunil Tajne (P. W.10), P. S. I. who recorded dying declaration (Exh. 57) and conducted investigation in the matter after having registered the offence against the accused, Trimbak Saste (P. W.11) who carried out further investigation into the matter, Dr. Rushikesh (P. W.13) who examined appellant Gajanan for burn injuries sustained by him as noticed in the certificate (Exh. 67) issued by him and D. S. P. Chandrashekhar Daithankar (P. W.14) who completed investigation and filed charge-sheet.