RAMESH DEOBA GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for murder of his wife as also for the offence of subjecting her to cruelty, under Sections 302 and 498-A of the Indian Penal Code. He was also tried for murder of his daughter under Section302 of the Indian Penal Code. THE prosecution has examined in all sixteen witnesses in support of the said charges. THE Trial Court vide impugned judgment dated16.2.1999 came to the conclusion that the charges stood proved. THE appellant was held guilty and convicted under Sections 498-A and 302 as also under Section304) Part-II of the Indian Penal Code. He was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 100/-, i/d to suffer further rigorous imprisonment for one month for the offence under Section498-A of the Indian Penal Code. THE appellant was further sentenced to undergo life imprisonment for the murder of his wife under Section302 of the Indian Penal Code and to pay fine of Rs. 100/-, i/d to suffer RI for one month. He was also sentenced to suffer rigorous imprisonment for ten years for the murder of his daughter under Section304, Part-II of the Indian Penal Code. THE substantive sentences were ordered to run concurrently. THE period of detention from 21.10.1997 till the date of judgment has been set off under Section428 of the Criminal Procedure Code. THE appellant challenges the said conviction and sentence in this appeal.

(2.) THE prosecution case, in brief, is that the appellant was married to the deceased Asha about five years prior to the incident in question. THEy had two daughters from the said marriage. According to the prosecution case, the appellant used to consistently quarrel, harass and ill-treat the deceased after consumption of liquor and also used to beat her. On the day of incident, appellant came home drunk and thereafter started quarreling with the deceased. Subsequently, he poured kerosene on her person and set her on fire. After setting her on fire he went away. In the process the daughter of the appellant and the deceased by name Madhuri who was 4 years old also caught fire and sustained burn injuries. THE deceased as also Madhuri were taken to the hospital. Deceased Asha had suffered 43% burns and Madhuri had suffered 44% burns. Deceased Asha died on20th Oct. , 1997. Madhuri was, in fact, discharged from the said Hospital on31st Oct. , 1997, but she also expired on21.11.1997. THErefore, the offence which was initially registered under Section307 was converted to Section302 of the Indian Penal Code charging the appellant for the offence of murder of his wife Asha as also his daughter Madhuri.

(3.) LEARNED counsel for the appellant urged before us that there is no independent evidence coming forth in relation to allegations of cruelty and witnesses examined are interested witnesses; that one Khaja who is alleged to have taken deceased to the hospital has not at all been examined and as the said witness is material witness adverse inference should be drawn against the prosecution; that the dying declaration recorded by the Special Judicial Magistrate Mohammad Abdul Rashid (PW15) suffers from various infirmities including the manner in which it was recorded, that is to say, the question being in English and the answers which were recorded in Marathi. According to the learned counsel for appellant, the prosecution has failed to bring home guilt of the appellant and the appellant should be acquitted. Alternatively, it is urged that the Trial Court has found that the offence in relation to Madhuri fell under Section304, Part-II of the Indian Penal Code. Likewise, the offence in relation to deceased Asha would also fall under Section304, Part-II of the Indian Penal Code since the facts in relation to both of them are identical and both of them have suffered almost same percentage of burns and both of them died after some days of the incident. He, therefore, contends that in case of charge of murder of deceased Asha, the offence has to be scaled down to Section304, Part-II of the Indian Penal Code.