YESHWANT BHANUDAS GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH the appellants herein have been convicted for the offence of murder of one Smt. Malan Ganesh Mundhe, under Section 302 read with Sec.34 I.P.C. and sentenced to undergo R.I. for life and to pay a fine of Rs.500/- each by the Additional Sessions Judge, Greater Bombay in Sessions Case No.179/1982. They have challenged in this appeal, their said conviction and sentence.

(2.) BRIEF facts in the background of the prosecution case may be stated as under : One Malan Ganesh Mundhe - the victim in this case and who will be hereinafter referred to as the deceased was residing with her husband Ganesh Mundhe in a hut situated at Reti Bunder, Chembur - one of the suburbs in Greater Bombay. She had one minor female child aged about 8/9 months. Besides husband and wife both the appellants were also residing in the said hut. The appellant no.2 is the father-in-law of deceased Malan and appellant No.1 is her brother-in-law being the husband of the sister of her husband.

(3.) ACCORDING to the prosecution deceased Malan although sustained 100% burn injuries was fully conscious. The medical record shows that at about 9.40 p.m. deceased Malan was taken to the Casualty Section of said Rajawadi Municipal Hospital and then the Police Constable posted at Casualty Ward appears to have taken her to the Burns Ward. It was then about 9.40 p.m. Dr. Dakshesh Parekh was the House Surgeon attached to the concerned Ward where deceased Malan was taken and Dr. Vivek Madhusudhan Rege (P.W.No.5) was the Registrar and on emergency duty at that time in the said Hospital. Dr. Rege (P.W.No.5) examined deceased Malan and he noted history as alleged Homicidal burn. He also made an endorsement that Patient was fully conscious. As stated earlier, deceased Malan was taken to the Casualty Ward and alleged history was written at about 9.40 p.m. as intentional burning by kerosene today and patient was conscious. This entry was to be found on page no.7 in medical papers produced as Exh.24. the incident was reported by Hospital authorities to Tilak Nagar Police Station, Chembur where Pandharinath Sakharam Waghule P.I. (P.W.No.1) was on duty. P.I. Waghule then alongwith staff went to Rajawadi Municipal Hospital. He contacted Dr. D.H.Parekh and inquired whether deceased Malan was in a position to make statement. P.I. Waghule (P.W.No.1) then recorded statement of deceased Malan which came to be treated as F.I.R. and produced as Exh.23. ACCORDING to P.I.Waghule (P.W.No.1) he then obtained the endorsement from Dr. D.H.Parekh on said statement Exh-23 that deceased Malan was in a condition to make statement. Such endorsement appears in the said statement Exh.23, which shows that statement of deceased Malan was recorded at about 12.45 a.m. in the night between 30/31st August 1981. P.I. Shri Waghule also claims to have recorded another Statement of deceased Malan in the Hospital, but it may be stated that the same has not been signed or certified by anybody, for that matter by the Doctor.