NAMDEO PANDURANG DHANBHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant alongwith three others was tried for the murder of Kasturabai under section302 read with section34 of Indian Penal Code. THE prosecution had in all examined 9 witnesses in support of the said charge. THE Trial Court relying upon the testimony of P.W.2 - Bajrang, history given by the deceased to Doctor at the time of admission, the First Information Report lodged by Kasturabai which was later on treated as dying declaration, written dying declaration recorded by Executive Magistrate - P.W.5, oral dying declaration of Kasturabai to her husband, medical and other evidence on record, found the appellant guilty of the charge of murder under section302 and he has been sentenced to suffer imprisonment for life. THE appellant was sentenced to pay fine of Rs. 500/- and in default to suffer rigorous imprisonment for one year. THE period of detention during trial was set off in terms of section428 of Criminal Procedure Code.

(2.) THE prosecution case, in brief, is that deceased Kasturabai was not on good terms with her sister-in-law Narmadabai. On the fateful day the deceased - Kasturabai had gone to her mother's house and from there she was going to fatch water. At that time Narmadabai came and caught hold the hands of Kasturabai. She was telling Kasturabai not to visit the house of her mother - Jaivantabai due to which there was quarrel and Narmadabai abused Kasturabai. THEreafter, Narmadabai told the other two co-accused, who have since been acquitted, to catch hold the hands of Kasturabai. THEn accused - appellant Namdeorao poured kerosene on the person of Kasturabai and set her on fire. Kasturabai went to the house of Tulsabai Kakde and from there she jumped into the water tank which was there at the house of one Bagde. This incident was seen by Bajrang P.W.2 who is son of Kasturabai who informed of this incident to his father. His father came and took Kasturabai from the water tank and later she was taken to the hospital. In the hospital Doctor - P.W.6 recorded the history as told by Kasturabai and she told that on27.7.1997 at2. 00 p. m. Namdeo poured kerosene on her person and burnt her on account of quarrel. THE Doctor informed the police, Police Officer asked the Doctor as to whether Kasturbai was able to give statement and upon Doctor - P.W.6 stating that she was competent to give statement, the Police Officer recorded the statement of Kasturabai, wherein also she had stated that it was Namdeo who had poured kerosene on her and burnt her. On the same day at about5. 00 p. m. the Executive Magistrate recorded the dying declaration of the deceased wherein also the deceased stated that Namdeo had poured kerosene on her and set her on fire. While deceased was being taken to the hospital she is said to have made oral dying declaration to her husband to the effect that Namdeo had poured kerosene on her and set her on fire.

(3.) THE next submission made by learned advocate for the appellant is that prosecution has failed to prove any motive and in the absence of proof of motive the prosecution has failed to establish the complicity of appellant in crime. He placed reliance on State of U. P. Vs. Babu Ram - 2000 (3) SCALE 215 and according to him on this count alone the prosecution case must fail. Lastly, it is submitted by learned advocate for the appellant that some of the material witnesses were not examined by the prosecution, as a result of which not only adverse inference should be drawn against the prosecution, but the statements of those witnesses before the police, who were not examined by the prosecution should be read in evidence and in this respect reliance is placed on Jalba Santuka Kamble Vs. State of Maharashtra 1995 (1) B. Cr. C. 168 as also on the judgment of the Apex Court and in Abdul Latif & others Vs. State of Uttar pradesh 1978 Cri. L. J. 639. Alternatively, it is urged that the defence at this stage be allowed to examine the said witnesses in this court. According to the learned advocate for the appellant, the prosecution has miserably failed in proving guilt of the appellant and the appellant deserves to be acquitted.