PRABHAKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal is by original accused No.1 Prabhakar, who was tried along with his father Kaduba (accused No.2), mother Gayabai (accused No.3) and sister Kusumbai (accused No.4) for offen ce punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code (IPC for short), alternatively Section 306 read with Section 34 of the Indian Penal Code. Only the appellant accused (hereinafter referred to as "accused") came to be convicted under Section 498-A and Section 302 of the Indian Penal Code. For offence under Section 302 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-, in default to suffer rigorous imprisonment for three months; for offence under Section 498-A of the IPC, he is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/-, in default to suffer rigorous imprisonment for three months. His old aged father Kaduba, who was 80 years when charge sheet was filed, died during pendency of appeal and the appeal abated as far as his father was concerned. Accused Nos.3 and 4 came to be acquitted of the offences with which they were charged.

(2.) The case of the prosecution in short is as follows :-

(3.) The matter was committed to the Court of Sessions at Aurangabad. It was tried before 4th Additional Sessions Judge, who convicted the appellant- accused as mentioned above. The appeal raises grounds, and it has been argued on behalf of the appellant, the very first dying declaration of the deceased in the nature of history recorded by C.M.O. at the Casualty was suppressed by the prosecution. It was a case of accidental death. The accused had suffered burns in his efforts to save his wife. At the hospital, Dr. Sureshchandra Chavan (D.W.1) had recorded history of the incident as was told to him by the victim. This was reflected in the MLC, which was recorded on 5.7.1995 at 21:21 Hrs. Surajlal and Bhanudas, who had taken the victim to the hospital, were not examined by the prosecution. Neighbours and independent witnesses were not examined. There was inordinate delay in filing of the F.I.R., which was of more than 24 hours. The trial Court found explanations in favour of the prosecution and on surmises ignored the delay. P.W.1 Narayan had gone to Advocate and after consultation, approached the police and the victim was tutored. When the dying declaration of victim was recorded, admittedly wife of P.W.1 Narayan was present there near the bed side. The dying declarations (Exhibits 20, 21 and 29) did not bear time or certificate of Medical Officer certifying consciousness and fitness of the patient. All this was ignored. The evidence of P.W.1 and 2, the brothers of the victim, were unreliable. There were material omissions and improvements in the evidence.