SHIVAJI TUKARAM PATDUKHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, by this appeal, challenges his conviction for an offence punishable under Section302 of the Indian Penal Code and the sentence of imprisonment for life and to pay a fine of Rs. 500/-, I. D. R. I. for three months, passed by the IInd Additional Ad-hoc Sessions Judge, Aurangabad, in Sessions Case No. 18/2001, by Judgment dated-28-06-2001.

(2.) THE facts, as are necessary for the decision of this appeal, are re-produced thus. PW-10 PSI Sudhakar Suradkar, who was working as PSI in the Police Station, Ajintha. On 29-12-1999, he received a wireless message from control room regarding the deceased Durgabai having been admitted in the hospital with burns. He accordingly deputed Head Constable Bagul to record the statement of Durgabai at Ghati Hospital. On 30-12-1999, he visited the scene of the offence and recorded the scene of the offence panchanama at Exh-14 in the presence of PW-5 Prabhu Sakhale. From the scene of the offence, he attached kerosene can, a bottle smelling of kerosene, a match-box and nylon saree pieces. He also attached burnt saree pieces from the place where the deceased had fallen on the road.

(3.) IN order to appreciate and consider the submissions advanced by the learned Counsel for the appellant, it is useful to make a reference to the evidence of the witnesses. PW-1 Namdeo, the father of the deceased, stated that the marriage of deceased Durgabai with the appellant/accused was solemnised about a year and half before the incident. This was a second marriage of deceased Durgabai as her earlier marriage had been dissolved by a decree of divorce. According to PW-1 Namdeo, Durgabai used to visit his house frequently. A day previous to the day of the incident, Durgabai had visited his house and had requested for some money for getting herself examined from the medical practitioner as she was feeling pain in her body. He accordingly gave her Rs. 20/- and she went to the dispensary of PW-6, Dr. Achut Lele. IN the evening, when he returned from his field, his wife PW-4 Janabai told him that deceased Durgabai had not returned from the dispensary of PW-6 Dr. Lele. He, therefore, advised his wife PW-4 Janabai to go to the house of the accused and to find out what the matter was. Accordingly, on the next day, in between 9. 00 a. m. to 10. 00 a. m. , PW-4 Janabai went to the house of the accused. She returned at about11. 00 a. m. And informed him that, Durgabai had told PW-4 Janabai that Dr. Lele had told Durgabai that she was suffering from Typhoid. PW-4 Janabai then asked the accused as to why he did not bring any medicine for Durgabai. At that time, the appellant/accused was drinking liquor. On hearing this, PW-1 Namdeo went to his agricultural field. At about3. 30 p. m. , his nephew Balaji came and informed him that the accused had set Durgabai ablaze. Balaji further informed him that the accused had sprinkled kerosene on Durgabai and lit her with a match-stick. On hearing this, PW-1 Namdeo immediately went home and then went to the house of the accused. Meanwhile, Durgabai had been taken to the Sillod Hospital by his brother Gangadhar and his wife PW-4 Janabai. He, therefore, returned back to his house. On the next day morning, since Durgabai was taken to Government Medical College Hospital, Aurangabad, he and other relatives went to Aurangabad and met deceased Durgabai in that hospital. He asked her as to how she had received the injuries and Durgabai told him that she was asking the accused to bring medicines for her, but the accused was telling her that she was feigning illness. Durgabai further informed PW-1 Namdeo that the accused had poured kerosene on her and had set her ablaze with a match-stick. Durgabai survived agony of 85% burns for a period of nine days and ultimately, on10th day, she succumbed to her injuries. IN the cross-examination, PW-1 Namdeo has admitted that there is hardly any distance between his house and the house of the accused. Durgabai was on constant visiting terms and he was unable to state whether Durgabai had faced any problems or trouble from the accused, or his parents. The accused was working on daily wages and his mother was also working on daily wages. Omission was brought out in the cross-examination about PW-4 Janabai informing him that Durgabai had not returned home and he advised PW-4 Janabai to go to the house of accused and find out what the matter was. Omission was also brought out in his cross-examination about Durgabai having visited his house a day prior to the incident and requested for Rs. 20/- in order to get herself examined from a medical practitioner. Omission was also brought out about his statement that Durgabai had gone to the dispensary of Dr. Lele (PW-6) for taking treatment. Importantly, omission was brought out in respect of his statement that he had not stated before the police that when his wife had asked the accused as to why he did not provide medicine to Durgabai, he was drinking liquor. Similarly, another omission was brought out in respect of Balaji informing that accused had set Durgabai ablaze, after pouring kerosene on her. Contradiction duly proved at "a" was brought on record about his wife PW-4 Janabai going to the house of the accused in the afternoon to make inquiry about Durgabai. He denied to have stated the portion marked "a" in his statement. IN the cross-examination, he has also admitted that when he reached the house of the accused at about5 p. m. , he was distraught, and therefore, did not go to the Police Station, Ajintha to lodge a complaint. According to him, he stayed at home during that night. Omission was also brought out that he had not stated in his statement that Durgabai had revealed to him at the hospital that the accused had refused to provide treatment to her alleging that she was pretending the illness.