DEEPAK @ PRADEEP SHRIRAM DHAVLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellants are assailing the Judgment and order passed by the learned trial Judge thereby convicting the appellants for the offence punishable under Section 302 read with 498A of the Indian Penal Code and sentencing them to suffer R.I. for life for the offence punishable under Section 302 and R.I. for two years for the offence punishable under Section 498A of the Indian Penal Code.

(2.) The prosecution case, in brief, is that deceased Pushpabai had marred Omprakash Dhavle, who is original accused no.3, prior to about seven years from the date of incident. It is the prosecution case that on 21st March, 2002, quarrel took place between the deceased and her motherinlaw i.e. appellant no.2 and in that incident accused no.2 Sau. Nirmala poured kerosene on the person of Pushpabai and accused Deepak set her on fire. Deceased Pushpabai was taken to the Government Hospital and thereafter was transferred to the General Hospital, Akola. In the Hospital, statement of Pushpabai was recorded by the Executive Magistrate on two occasions i.e. on 21st March, 2002 and on 22nd March, 2002. Third dying declaration also came to be recorded on 24th March, 2002 by police officer. Initially, charges were framed against four accused i.e. husband of the deceased, grand motherinlaw of the deceased and the present appellants, who are the brotherinlaw and motherinlaw of the deceased respectively. However, at the conclusion of the trial, the learned Sessions Judge acquitted accused nos. 3 and 4 and convicted the present appellants for the charges aforesaid. Being aggrieved thereby, the present appeal.

(3.) Shri Daga, the learned counsel appearing on behalf of the appellants, submits that there is inconsistency between the three dying declarations. He further submits that the prosecution has attempted to improve the versions in the dying declarations which are subsequently recorded. The learned counsel further submits that from the evidence of P.W.5 Noor Ahmadkhan, it could be seen that he does not state that the statement was read over to Pushpabai. The learned counsel, therefore, submits that in view of the Judgment of the Division Bench of this Court in the case of Abdul Riyaz Abdul Bashir vs. State of Maharashtra, 2012 AllMR(Cri) 2188), the fact, as to whether the deceased was mentally and physically in sound position to give statement, has not been proved. The learned counsel further submits that the Doctor, who is alleged to have examined the deceased, has also not been examined and as such the certificate of fitness would be of no use to the prosecution case.. The learned counsel relying upon the Judgment of the Division Bench of this Court in the case of Manik Vanaji Gawali vs. The State of Maharashtra, 2013 AllMR(Cri) 1766, submits that since the medical expert has not been examined, the prosecution has failed to prove that the deceased was in mentally and physically sound state to give statement. The learned counsel further submits that the evidence of P.W.7 Ramratan Dhanwar brother of the deceased, is also contradictory to the First Information Report. The learned counsel submits that P.W.7 Ramratan states that he has not made any complaint to the police authorities. However, perusal of the First Information Report would reveal that second dying declaration was recorded at the instance of P.W.7 Ramratan. The learned counsel further submits that the prosecution has also not sent the clothes of the accused for chemical analysis. The learned counsel further submits that the spot panchanama would also corroborate the first dying declaration given by the deceased. The learned counsel, therefore, submits that in totality of the circumstances, the prosecution has failed to prove the case beyond reasonable doubt and as such the accused/appellants deserve to be acquitted.