CHANDRABAI BALU KAPASE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the order dated 4-8-1992 passed by the 2nd Additional Section Judge, Kolhapur, in Sessions Case No. 151 of 1991 convicting her under section 302 I. P. C. and sentencing her to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to further suffer rigorous imprisonment for one month, has come in appeal before us.

(2.) THE prosecution case is that the deceased Bharati Rajendra Kapase was the wife of one Rajendra Kapase, son of the appellant. After marriage, Bharati is said to have been living with her husband and frequently complained of the illtreatment being meted out to her by husband and mother-in-law. It is said that on one pretext or the other the husband of Bharati, appellant and appellants daughter Survarna (sister-in-law of Bharati) used to beat her. All this become so intolerable that at one stage Bharati lived separately from the appellant but again started living with her. On the date of the incident i. e. 30-4-1991 at about 3. 00 p. m. to 3. 30 p. m. , the allegation is, that there was a quarrel between the appellant and Bharati culminating in the appellant pouring kerosene oil on Bharatis person and setting fire to her. The prosecution case is that some neighbour came to the rescue of Bharati and rushed her to General Hospital, Sangali. On 30-4-1991 at about 5. 40 p. m. P. W. 15 Dr. Vasudev Reghunath Dharwadkar got Bharati admitted in Sangali General Hospital. He prepared her case papers Exh. 39. when he asked the history from Bharati she told him that she was set on fire by her mother-in-law (the appellant ) who poured kerosene oil on her. The aforesaid recitals are contained in the case history Exh. 39 and rightly have been treated by the learned trial Judge as dying declarations.

(3.) AS the condition of Bharati started detoriating it was rightly thought necessary to have her dying declaration recorded by the Magistrate. Consequently the same day i. e. 30-4-1991 P. W. 5 Salma Shirolkar, special Executive Magistrate, came to the General Hospital, Sangali where she recorded the dying declaration of Bharati. That dying declaration was recorded at 7. 00 p. m. and is in question and answer form. Both prior to the recording of the dying declaration and after recording it, the Special Executive Magistrate took the endorsement from P. W. 9 Dr. Jagdish v. hosur about the fitness and mental condition of the victim. The first endorsement was taken before commencing recording of the dying declaration and the second endorsement was taken after its reecordinghad been completed. Both the endorsements are contained in Exh. 31 we think it necessary to mention the substance of this dying declaration which is in question and answer form. After ascertaining the name, the age and the place of residence of the victim Bharati, the Special Executive Magistrate asked the victim as to how she cought fire and in reply she said that today (30-4-1991) between 3 p. m. to 3. 30 p. m. a quarrel had taken place between herself and her mother-in-law (the appellant) and her mother -in-law poured kerosene oil on her person and, thereafter, set her to fire. Some other questions were also asked by the learned Magistrate, they being as to whether any quarrel used to previously take place or not, as to how much time had elapsed since the marriage, as to who resided in the house,as to where her husband had gone and finally against whom she wanted to complain. In reply to the question about the previous quarrels, Bharati replied that her mother-in-law (appellant) and sister-in-law Suvarna (daughter of the appellant) used to quarrel with her and beat her resulting in her being admitted for two days prior to the incident. In answer to the question as to how much time elapsed since the marriage, she replied that 10 months had elapsed. In reply to the question as to who resided in the house, her answer was she resided separately but the mother-in-law always kept a vigil on her. In reply to the question against whom she wanted to complain, she replied that her mother-in-law and her sister-in-law used to quarrel with her and beat her resulting in her being admitted for two days prior to the incident. In answer to the question as to how much time elapsed since the marriage, she replied that 10 months had elapsed. In reply to the question as to who resided in the house, her answer was she resided separately but the mother-in-law always kept a vigil on her. In reply to the question against whom she wanted to complain, she replied that her mother-in-law (the appellant) had poured kerosene oil on her and set her to fire and that her mother-in-law and her sister-in-law used to quarrel with her and beat her.