NAMDEO BADDHU JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for murder of his wife under Section 302 of the Indian Penal Code. THE prosecution case, in brief, is that the appellant had brought meat (mutton) which was kept by the deceased in an utensil. In the meantime, the appellant sent the deceased to bring some article from the shop. In the absence of the deceased, the mutton was eaten by dog. THE appellant got enraged and first assaulted the deceased with stick and subsequently, poured kerosene on her and set her on fire with the help of fuel stick from the hearth. Deceased sustained 72% burns and expired on 2-1-1998. THE incident in question had taken place on 1-1-1998 at 08. 00 p. m. THE deceased was admitted in Primary Health Centre, Manora where her dying declaration was recorded by Naib Tahsildar after obtaining due endorsement from the Medical Officer regarding fitness of the deceased. THE prosecution has examined the said Naib Tahsildar as P. W. 4 and doctor who certified that the patient was fit for giving statement was examined as P. W. 2. Later on the deceased was shifted to the Hospital at Akola where again dying declaration was recorded by Special Judicial Magistrate (PW 1) after obtaining due certificate from the doctor. THE said doctor has been examined as P. W. 3. THE Trial Court accepted the two dying declarations and rejected the plea taken by the appellant that he was not present at the time of incident. THE appellant had examined one witness in his defence who had stated that he extinguished fire when the deceased came out of the house and at that time the appellant was not present.

(2.) THE learned counsel for appellant urged before us that the defence evidence to the effect that the appellant was not present at the time of incident was not even challenged by the prosecution and the testimony of defence witness (DW 1) has remained unchallenged and there is no reason whatsoever to discard the said testimony. According to him, in the light of the said testimony of DW 1, the dying declarations cannot be accepted and at least, the dying declarations become suspect on account of evidence of D. W. 1.

(3.) THE prosecution has examined doctor as P. W. 2 who has stated that on 2-1-1998 Tulsi was admitted in the Primary Health Centre. He had examined her. He deposed that when P. W. 4 visited the hospital, he had asked this witness to examine the patient and on examining her, he certified that she was fit to give statement. After recording statement, he again examined and endorsed that she was fit to give statement. THE testimony of this witness regarding fitness of the deceased to give statement could not be shaken during cross-examination.