KASHINATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant is the original accused No.1 who was prosecuted in Sessions Case No.23 of 2013 before the learned Sessions Judge, Nanded. The appellant has been held guilty of committing offence punishable under Ss. 302 and 498-A of the Indian Penal Code, by Judgment and order dtd. 14/8/2014 by the learned Sessions Judge, Nanded, hence this Appeal.

(2.) Heard learned Advocate Mr. Bhosle appearing for the appellant and learned APP Mr. Dasalkar appearing for the respondent - State.

(3.) It has been vehemently submitted on behalf of the appellant that the allegation against the appellant is that he has committed murder of his wife by pouring kerosene on her person. In fact, at the time of trial, the brother and mother of the appellant were also made an accused, however, they have been acquitted. The offence came to be registered on the basis of the First Information Report (for short "FIR") which was in fact a dying declaration given by the deceased and initially the offence came to be registered under Sec. 307 and other Ss. , however, later on the informant succumbed to her injuries and therefore Sec. 302 of the Indian Penal Code came to be added. It is not in dispute that present appellant was married to informant Muktabai about four years prior to the incident i.e. 23/8/2012. She was residing with appellant, brother-in-law, sister-in-law and mother-in-law. The case of the prosecution is based on two dying declarations which were recorded on 24/8/2012, almost consecutively. The dying declaration Exhibit-51 is recorded by the police head constable on duty at the hospital and dying declaration Exhibit-52 is recorded by Special Judicial Magistrate. The learned trial Judge has given unnecessary weightage to these two dying declarations and failed to consider that in the medical evidence it has come on record that neck, head and upper part of the body of the deceased had received major burn injuries. The trunk - anterior and posterior had received 16% burns each. Head, neck and face had received 6% burn injuries and including the other burn injuries, the total injuries the deceased had received comes to 56%. The cause of death is "septicemia due to burns". Muktabai expired on 30/8/2012. Further, on 24/8/2012 itself the relatives of the deceased had taken discharge of the patient against the medical advice and it has come on record that she was admitted to private hospital. However, the doctor at that place i.e. private hospital has not been examined by the prosecution. It ought not to have been therefore considered, taking into consideration the probable cause of death, that the death was homicidal in nature. Further, there were burn injuries to the accused also, which were not explained by the prosecution.