SADIK ALI MOHMAD BAKSHA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) PRESENT appeal is filed by Sadik Ali Mohammed Baksha and Sidram Narsu Survase @ Chabukswar, Accused Nos. 1 and 2 at the trial. Accused No.3 Nilappa Birappa Sonkade has been acquitted and hence he is no longer concerned with the present appeal. By judgment and order passed on the 18th of April, 1994 by the 4th Additional Sessions Judge, Solapur in Sessions Case No.193 of 1993 both accused Nos. 1 and 2 are convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default to undergo further rigorous imprisonment for one year. The aforesaid order of conviction and sentence is impugned in the present appeal.

(2.) AT the trial, present Appellants, Accused Nos. 1 and 2, alongwith one more i. e. Accused No.3 were charged under Section 302 read with Section 34 of the Indian Penal Code for having, on the 29th of March, 1993, at about 11.00 a. m. , near a well in land bearing Gat No.475 (D) owned by Accused No.1 and situated within the limits of Mauje Hotgi, Taluka South Solapur, District Solapur, in furtherance of their common intention, committed the murder by intentionally or knowingly causing the death of Yashodabai Kallappa Chavan, by pouring kerosene on her person and setting her on fire.

(3.) P. W. 11 Dr. Vasudeo Sidram Madgundi was on duty at the Civil Hospital, Solapur. Yashodabai was admitted in the hospital at about2.30 p. m. on the 29th of March, 1993. The history given to him was "alleged burns at about 11.15 a. m. today". This was noted down in the medical case papers (Exhibit 33 ). Dr. Madgundi found burn injuries sustained by Yashodabai as noted in the medical certificate (Exhibit 9 ). At that time P. W. 12 Hamid Ahmed Sheikh was the Head Constable on hospital duty. He informed about the admission of Yashodabai in the hospital over telephone to the Sadar Bazar Police Station. Under instructions from the police station he contacted P. W. 1 Sharanbappa Gurushantappa Tarapure, Special Executive Magistrate for recording the dying declaration of Yashodabai. Tarapure proceeded to the burn ward of the Civil Hospital. There, he contacted P. W. 18 Dr. Abhijit Suhas Mhaskar at about 2.45 p. m. and enquired whether Yashodabai was conscious and was in a fit condition to give a statement. Dr. Mhaskar certified Yashodabai to be in a fit condition by making an endorsement in the margin of the proforma (Exhibit 14 ). This was at 4.20 p. m. Special Executive Magistrate Tarapure, thereafter, recorded the dying declaration of Yashodabai (Exhibit 14 ). He obtained the thumb impression of Yashodabai on her dying declaration, which was recorded in duplicate by using carbon paper. He handed over the original to the police and kept the copy with himself. On the same day, at about 5.00 p. m. a policeman came to the hospital. He asked Dr. Mhaskar whether Yashodabai was in a fit condition to make a statement. After the doctor certified her to be in a fit condition, the policeman recorded her statement (Exhibit 37 ). The same is treated as the first information report in respect of the present offence. The aforesaid offence was registered by P. W. 13 Dhondiram Laxman Gaikwad who was in charge of the Sadar Bazar Police Station vide C. R. No. 0/93 on 29th of March, 1993 at 9.05 p. m. Since the offence had taken place within the jurisdiction of Valsang police station he sent the F. I. R. (Exhibit 37) as also the dying declaration (Exhibit 14) to Valsang police station. P. W. 14 Head Constable Chandrakant Sopan Pawar who was attached to the Valsang police station received the dying declaration (Exhibit-14) and the first information report (Exhibit-37) and registered the offence vide C. R. No.9/93. Both, in the dying declaration (Exhibit-14) and in the first information report (Exhibit-37) Appellants/original accused Nos. 1 and 2 were implicated as being responsible for pouring kerosene on the person of Yashodabai and setting her on fire.