GAJANAN HARIBHAU JAVRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for the murder of his wife as also for treating her with cruelty under sections 302 and 498-A of the Indian penal Code. The prosecution had in all examined nine witnesses in support of the charges. The trial Court after placing reliance on the dying declaration of the deceased recorded by the Executive Magistrate Rajendra Deshmukh (P. W. 6) as also the attending circumstances including spot panchanama, came to the conclusion that prosecution had succeeded in establishing the charges against the appellant. The theory of suicide put forward by the appellant was rejected. The appellant was sentenced to imprisonment for life and fine of Rs. 5000/-, in default R. I. for one year under section 302,i. P. C. and to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- i/d to suffer R. I. for two months. Substantive sentences were ordered to run concurrently. Benefit of period in detention was given to the appellant under section 428, Cri. P. C.

(2.) THE prosecution case in brief is that the marriage of the appellant with deceased Kalpana had taken place on 15-6-1995. After marriage the appellant was suspecting fidelity of his wife Kalpana with reference to one Jitendra, son of landlord and one Dhokne Guruji. On 24-1-1996 at about 03. 00 a. m. deceased got up to drink water. The appellant also got up; poured kerosene on her person and set her on fire. She raised cries and on hearing her cries, landlord's son Jitendra (P. W. 1) and his wife as also other persons rushed to the house of appellant. The door of the house was found closed. The sale persons asked the accused to open the door and it was only thereafter tha the accused opened the door. Deceased Kalpana was found lying on cot witf severe burns. She was taken to the hospital and the Executive Magistrate was asked to record her statement. The Executive Magistrate asked Dr surendra Bhoyar about the fitness of the patient. Doctor examined deceased kalpana and opined that she was not able to speak properly though he founc her fully conscious. According to the doctor, Kalpana was not fit for giving dying declaration due to slurring speech because of rigours. On the next day i. e. on 25-1-1996 the Executive Magistrate was again requisitioned for re cording the dying declaration of the deceased. He came to the hospital a about 07:40 a. m. The Executive Magistrate, after ascertaining the fitness o the patient from the doctor for the purpose of recording the statement, re corded the statement of Kalpana. The doctor was throughout present during recording of the statement. The Spot panchanama was conducted. The deceased died on account of 88% burns. After competing the investigation appellant was charge-sheeted, as stated above.

(3.) IN his statement under section 313, Cri. P. C. the appellant came out with total denial. The appellant even denied that at the time of incident he was inside the house; he was asked to open the door and after sometime he opened the door. However, in the written statement filed by him, he stated that he was sleeping in the house at the time of incident and on hearing the shouts he tried to save his wife on account of which he sustained burn injuries. He stated that deceased Kalpana was suffering form epilepsy and out of disgust, she set herself on fire and committed suicide.