MARUTI YESHWANT LOKARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS judgment disposes of Criminal Appeal No.532 of 1993 and Criminal Appeal No.488 of 1993. They arise from the same occurance.

(2.) BALU Ganpati Lokare and Maruti Yeshwant Lokare were charged for intentionally or knowingly causing the death of Shobha Lokare by pouring kerosene and setting her ablaze and thereby committing offence punishable under Section 302 read with Section 34 of I.P.C. Alternatively they were also charged for committing the offence punishable under Section 498-A read with Section 34 I.P.C. by Additional Sessions Judge, Kolhapur in Sessions Case No.17 of 1990. The charge having been established they were convicted of the offence punishable under Section 302 and 498-A read with Section 34 of the Indian Penal Code. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for two months each for the offence punishable under Section 302 read with Section 34 of the I.P.C. They were further sentenced to rigorous imprisonment for one year and to pay a fine of Rs.200/-. in default thereof to undergo further rigorous imprisonment for one month for the offence punishable under Section 498-A read with Section 34 of the I.P.C. by judgment and order dated August 10, 1993. Aggrieved against this judgment and order BALU Ganpati Lokare, original accused No.1, has challenged his conviction and sentence in Criminal Appeal No.488 of 1993 and Maruti Yeshwant Lokare, original accused No.2 has challenged his conviction and sentence in Criminal Appeal No.532 of 1993. Since they arise from the same incident, they are being heard and disposed of together.

(3.) P.W.1, Dhondiram Pol, Special Executive Magistrate recorded the dying declaration (Exh.18) at the request of the police. The English translation of the same reads thus: "Statement of Sou, Shobha Balu Lokare, age 20 years Occ. Household, r/o Subhashnagar, recorded before her death. Before Shri S.D.Pol C.P.R.Hospital, Kolhapur Executive Magistrate, Date: 12-10-1989 Karvir. Time: 2.00 a.m.in the night. Que : Whether you can tell what is your name ? Ans : My name is Shobha Balu Lokare, r/o Subhasnagar, Kolhapur. Que : Whether you can tell as to how you are burnt ? Ans : My husband and his brother were occasionally beating me. On 11-10-1989 in the evening at about 7.00 p.m. my husband and his brother quarrelled with me. Thereafter brother of my husband namely Shri Maruti Yashwant Lokare poured kerosene on my person and set me on fire and it is true. I was set on fire as I am black and that I was not going to my maternal house and it is true. Que : Whether you have suspect of any other persons on this point ? Ans : No. on this point. I have no suspect on any other person. In collusion with my husband, his brother has set me on fire by pouring kerosene. And it is true. Que : Whether you want to say anything more in respect of this point ? Ans : No. I do not want to say anything more on this point. Brother of my husband has poured kerosene on my person and set me on fire. And it is true. Statement is read over to me and it is correct. Statement completed on 12-10-1989 at 2.15 a.m. in the night. L.H.T.I. of Shobha Balu Lokare. Sd/- English. 12-10-1989 Executive Magistrate, Karvir. The patient is in good condition and give statement. 12-10-1989 2.00 a.m. Sd/- English Casualty Medical Officer, C.P.R.Hospital, Kolhapur." P.W.1 at the trial deposed that he recorded the dying declaration in question and answer form after verifying from the doctor that the deceased was in a fit condition to give her statement. He had ensured that when the statement was being recorded no other person was present nearby. The witness stated that the deceased disclosed her name; that her husband and his brother used to beat her often; that on October 11, 1989 her husband and brother-in-law poured kerosene on her body and set her ablaze. The testimony of P.W.1 receives corroboration from the testimony of P.W.3, Dr.Dattatray Shitole. P.W.3 stated that P.W.1 came to the hospital for recording dying declaration. He took P.W.1 to the patient and at that time no one was near the patient. He examined the patient and found that she was in a fit mental condition to give her statement. He made an endorsement to this effect on the dying declaration. He was present near the patient when the dying declaration was recorded. After the dying declaration was recorded, he examined the patient and found that she was fully conscious. P.W.3 was cross-examined but nothing was elicited in the cross-examination to cast even remotest doubt about his testimony. Their evidence is consistent, coherent and rings true. It is not open to doubt that conviction can be recorded on the basis of the dying declaration if it is found to be true and worthy of credence. It is not the requirement of law that the dying declaration without corroboration cannot be accepted. The learned trial Judge is correct in recording a finding of guilt on the basis of the dying declaration (Exh.18).