BABULAL TALMA ZAMBARKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant/ husband being aggrieved by the judgment and order of conviction dated 24-12-1999 passed by the learned Additional Sessions Judge in S. T. No. 72 of 1997 has filed this appeal, whereby the appellant has been convicted for the offence punishable under Section 302 of Indian penal Code and has been sentenced to undergo imprisonment for life and to pay a fine of rs. 100/- in default to undergo further imprisonment for one month.

(2.) THE prosecution case, in brief, can be stated as under : the appellant's marriage with deceased sarita was solemnized prior to two years of the incident. The wife had conceived but there was miscarriage of two month's foetus. Thereafter the wife again conceived and was carrying two months' pregnancy. On the earlier day the appellant had quarrelled with his wife over the issue of consumption of liquor and at that time he had assaulted her with slaps and fist blows. The incident occurred on 02-11 -1991. On the date of the incident at about 1 O'clock the appellant along with his friends had come to the home and they had consumed the liquor. His friends left the house. When the wife questioned the appellant about the consumption of liquor, he started beating her, thereafter he poured kerosene from the can on her person, ignited the match stick and set her on fire. The appellant did not try to extinguish the fire but simply left the spot of incident. Sarita herself on her own got into the cistern to extinguish the fire. Sarita was admitted in the Irwin hospital. A. S. I. Krishnarao (P. W. 6), who was in charge of the station diary at R. P. I. Office, recorded the entry in the station diary and informed the gadgenagar Police Station. Police Constable koka (P. W. 3) accompanied by P. S. I. Agle reached Irwin Hospital and the former had scribed the statement of Sarita as per the dictation of the latter which was treated as first information report. The offence bearing Crime no. 418 of 1991 for the offence punishable under Section 307 of Indian Penal Code was initially registered against the appellant. Shriniwas Pathak (P. W. 5) who was working as Special Judicial Magistrate, on receiving the requisition from the police, reached Irwin hospital and recorded the dying declaration (Ex. 28) at 6. 30 p. m. Dr. Manohar (P. W. 4) was present at the time of recording of the dying declaration and he certified that Sarita was in a fit condition to give her statement. Thereafter the Special Judicial Magistrate recorded the dying declaration and Sarita stated that it was her husband who had set her on fire and burnt her because he was addict of liquor and there used to be quarrels between them over the consumption of liquor by her husband and that she was being ill-treated at the hands of her husband. Police visited the spot of incident and drew spot panchanama in presence of panch witness Ravindra (P. W. 2) and seized various articles from there in presence of the panch witness. Sarita succumbed to the burn injuries in the hospital on 03-11 -1991 at about 12. 35 a. m. Thereafter Dr. Kiran (P. W. I)effected autopsy on the dead body on the same day and found that Sarita was having 99% burn injuries and he opined that the probable cause of death is due to shock due to excessive burn injuries. After completion of investigation, the appellant was put to trial. The trial Court framed the charge against the appellant to which he pleaded not guilty and therefore the trial proceeded with. The defence of the appellant was that Sarita's brother Kalu (D. W. 1) had asked the deceased as to how she was burnt to which she had stated to him that while preparing the food her saree had caught fire and she got burnt and this statement is said to have been made by the deceased on reaching the Irwin Hospital. It is contended that her father had instructed her that she should implicate the husband and should give a statement before the police that her husband had set her on fire. It is contended that the appellant has been falsely implicated.

(3.) THE prosecution has examined as many as six witnesses in order to bring home the guilt, whereas the appellant has examined one defence witness Kalu (D. W. 1) who is the brother of the deceased. The learned trial judge on considering the evidence adduced by the prosecution as well as the defence has recorded the finding that Sarita died as a result of homicidal death due to excessive burn injuries and that the prosecution has proved the complicity of the appellant in the commission of the murder of Sarita. Consistent with these findings, the learned trial Judge convicted and sentenced the appellant as mentioned above. This judgment and order of conviction is under challenge in this appeal.