SURESH MOHANIRAJ THAKUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant was charged, tried and convicted of an offence punishable under Section 302, however, acquitted of an offence under section 498a of Indian Penal Code (IPC). Therefore, this appeal against the order of conviction.

(2.) As per the prosecution on 11/11/ 1993, the appellant, during the quarrel with changunabai (the deceased) , poured kerosene on her from the stove and set fire. The burn injuries were 70%. The neighbours came and exringuished the fire. The defence of the appellant was that, he was not present on the spot at the time of incident, and when he came, found that the deceased was burning. He tried to extinguish the fire, therefore, he suffered 5% burn injuries. The deceased was hospitalised. In the hospital a Special Judicial magistrate (P. W. 11) (Kisanlal Bora) (SEM) was summoned and a dying declaration (Exh. 22) was recorded on 11/11/1993, which was scribed by one Shri. S. B. Deshmukh, p. W. 8 and not by the SEM, as he forgot to bring his spectacle. In the said dying declaration it was stated by the deceased that the appellant after pouring kerosene, set her on fire. The said dying declaration was treated, as FIR and crime was registered accordingly. On 12th November, 1993, the appellant was arrested. The spot panchanama and inquest panchanama were recorded on the same day. On 12/11/1993, at 9.20 a. m. , in the presence of Medical Officer, when the deceased was conscious, the Social Judicial magistrate (SEM) , P. W. 10, "mr. Baviskar, recorded the second dying declaration (Exh. 30) at Nasik, wherein the deceased had stated that she was burnt as stove exploded. The statement made in the second dying declaration, no where implicated and/or suggested the name of the appellant. The statement made therein was in contradiction to the first dying declaration. On 23rd november, 1993, the deceased succumbed to the burn injuries. The accused was also medically examined by P. W. 6, Jagdish Patil. After completion of the investigation the appellant was charge-sheeted. The charges were framed under section 498a r/w section 302 of IPC and same were denied by the appellant and pleaded not guilty. No evidence was led by the appellant in support of his defence. The prosecution has examined 13 witnesses. Most of them were declared hostile. The learned Judge, however, based on the first dying declaration Exh. 22, dated 11/11/1993, found him guilty of the murder.

(3.) Heard learned Counsel Mr. S. V. Kotwal for the appellant and learned A. P. P. , dr. F. R. Shaikh for the State.