VILAS SARJERAO KADAM Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal is directed against the judgment and order dated 9th May 2012 delivered by the Addl. Sessions Judge in Sessions Case No. 763/11, convicting the appellant who was the sole accused in the said case, of an offence punishable under section 304 Part I of the Indian Penal Code (IPC), and sentencing him to suffer Rigorous Imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/- in default to suffer Rigorous Imprisonment for 1 (one) year. The charge against the applicant in the said case was of having committed an offence punishable under section 302 of the IPC, but the learned Addl. Sessions Judge came to the conclusion that the offence committed by the appellant would be of a lesser degree and would be one punishable under section 304 Part I of the IPC. The appellant was charged for having committed murder of his wife Seema. Appellant and Seema were married to each other in the year 2006. They had been residing in Sitabai Chawl, Sion. They had a daughter of 18 months. Appellant was in the habit of consuming alcohol, and gambling and on that account, there used to be frequent quarrels between the appellant and Seema. A few months before the incident. Seema had lodged a report with the police alleging illtreatment by the accused which was recorded and registered as a non-cognizable case.

(2.) The incident took place on 15th May 2011. On that day, Seema and appellant both were in their house. It was afternoon time. The appellant had consumed alcohol, and a quarrel took place between him and Seema. In a fit of anger and perhaps to threaten the appellant, Seema poured kerosene on her person. The appellant, at that time, ignited a matchstick and threw it on Seema. Seema caught fire, started shouting and ran out of the room. Appellant followed her. Vicky Khade (P.W. 1) - a neighbour heard the cries of Seema and came out. Vicky Khade and appellant both extinguished the fire caught by Seema by pouring water on her person. They called a taxi, and took Seema to Sion hospital. Seema was got admitted and was treated. She had sustained 75% burn injuries on different parts of her body. On 20th May 2011, she succumbed to the burn injuries.

(3.) During the trial, prosecution examined 9 (nine) witnesses to prove the charge against the appellant. The evidence against the appellant, however, consisted only of the 'dying declarations' which are admissible in evidence, under Section 32(1) of the Evidence Act made by Seema. implicating him. There were a number of dying declarations made by Seema, and the first one was the oral one made by her in the presence of Vicky Khade and the appellant himself. The second one is also an oral one made by her to her brother, shortly thereafter. There is no written record of these dying declarations. Then, there is Seema's statement made by her to Bhaskar More (P.W. 5), a Sub-Inspector attached to Dharavi Police Station, at the material time. This statement through oral, was recorded by More and was treated as the First Information Report, and is also a dying declaration admissible under Section 32(1). A statement of Seema was recorded by Mrs. Pratiksha (P.W. 4), a Special Executive Officer on 18th May 2011, which is also a dying declaration, and admissible under Section 32(1) of the Evidence Act. Thus, though all the statements were made verbally by Seema, two of them have been reduced to writing and the written record was produced before the Court and given in evidence during the trial. The trial court has believed these dying declarations as true and reliable.