DATTATRAYA RAMSWAMI GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY a Judgment and order passed by the learned IInd Addl. Sessions Judge, Solapur, on 15th May, 1996 accused No.1, Dattatraya Ramswami Gaikwad, is convicted whereas accused No.2, Karuna Dattatraya Gaikwad is acquitted for an offence punishable under section 302 of the Indian Penal Code (IPC ). Taking exception to the order of conviction, accused No.1 has preferred a Criminal Appeal No.305 of 1996, whereas the State of Maharashtra has impugned the order of acquittal passed in favour of accused No.2 by filing Criminal Appeal No.495 of 1996.

(2.) THE deceased in the instant case is Anita Nagesh Ausekar. She was residing in a house bearing No.2/9, Keshav Nagar Police Line, Solapur. She was a Police constable attached to the Commissioner's officer at Solapur. Accused No.1 was also a Police constable similarly attached to the very same office. Accused No.2, Karuna Dattatraya Gaikwad, is the wife of accused No.1. Deceased Anita and accused No.1 had developed intimate relations. On the day of the incident i. e. on 27th August, 1995 at about 1. 30 p. m. accused No.1 was in the house of Anita having meals. At that time accused No.2 arrived there and objected to the presence of accused No.1 in the house of Anita. Altercations took place. Soon thereafter Anita was seen going out of her house in flames. She rushed towards a pond of water and extinguished herself. Accused No.1 also helped in extinguishing the fire. Accused No.1 thereafter took Anita to the Civil Hospital and got her admitted. THE first record in respect of the cause of burns sustained by Anita is to be found in the station diary entry Exhibit-54, which is made on the strength of information furnished by Police Constable, Waghmare, who at the material time was on hospital duty. THE entry merely recites "burn injuries today at 1. 00 p. m. due to flaring up of stove while she was preparing food. " Further entry in respect of the cause of burns is to be found in the Medical Case Papers (Exhibit-25 ). It recites "h/o alleged burn today at about 1 PM. " A further entry in the aforesaid Medical case Papers recites "h/o homicidal burn at around 1. 00 p. m. on 27th August, 1995. " THE aforesaid entries do not even remotely implicate either of the accused as being responsible for causing the death of Anita by setting her on fire.

(3.) THE next Dying Declaration is the one recorded by P. W. 17, P. S. I. Namdeo Ambhule, later on the same day, the earlier Dying Declaration Exhibit-43, was recorded by the special Executive Magistrate, P. W. 14 Mhamane. Whereas SEM Mhamane has recorded the Dying Declaration at 1. 45 p. m. P. S. I. Ambhule has recorded Dying Declaration, Exhibit-69 at 3.15 p. m. It is difficult to understand the reason which has prompted the Investigating Officer to record a further Dying Declaration even though a Dying Declaration has been duly recorded by a Special Executive Magistrate. One can understand a Police Officer recording a Dying Declaration when the services of the Special Executive Magistrate cannot be made readily available in good time and it becomes necessary to record the Dying Declaration immediately in case of a possibility of the patient succumbing to his or her injuries if the condition of the patient is critical. When a Dying Declaration is recorded by the Police Officer after a Dying Declaration has been duly recorded by the Magistrate the one recorded later by the Police Officer becomes suspect and it becomes difficult to place implicit reliance on such a statement.