SALIM GULAB PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal is directed against the judgment and order passed by the IV Additional Sessions Judge, Pandharpur on 21.6.2002 in Sessions Case No.120 of 2001 holding the appellant guilty of an offence under section 302 of the Indian Penal Code and imposing a punishment and sentence to suffer rigorous imprisonment for life and to pay a fine of Rs.200/-, in default to suffer rigorous imprisonment for seven days.

(2.) The deceased Nazabi was the wife of the accused appellant and out of the wedlock they had two children. At the time of the incidence, i.e., on 4.9.2001 the deceased Nazabi alongwith the appellant accused were staying with PW1 Akbar Shaikh. The said PW1 Akbar Shaikh is the father in law of the appellant and father of the deceased Nazabi. The incident has taken place on 4.9.2001 at about 8 to 8.30 pm at Hatid Shaikh Vasti at Sangola. On the day of incident, according to the prosecution, at about 8 or 8.30 pm, PW1 was sitting outside the house and at that time there were some oral altercations between the accused appellant and the deceased Nazabi. Thereafter the deceased was sitting with her father and the accused appellant gave a call and therefore, the deceased Nazabi went inside the house. The accused locked the door and thereafter they had a quarrel and the accused appellant poured kerosene on the person of the deceased Nazabi and set her on fire. She came out of the house in burning condition. The accused also came behind her and ran away. PW1 Akbar, the father of the deceased, was outside the house who alongwith PW5 and others extinguished the fire. At that time PW3 and PW5 and so also PW6 were present. In the presence of PW3 and PW5, the deceased made a statement on being asked as to how she is put on fire, that the accused appellant set her on fire. Thereafter after giving water to the deceased the deceased was taken to Civil Hospital at Sangli. There the Doctor has recorded the history as per the statement given by the deceased to the extent that the deceased was set on fire by her husband due to the doubt of her character. Thereafter the Doctor has given an information to the police. The police constable recorded the statement of the deceased being the dying declaration wherein the deceased repeated the same story. On the next day, the deceased expired. After the inquest at Exhibit 6 and the postmortem was carried out and the dead body was handed over to PW1 who carried out the last rituals. The First Information Report at Exhibit 10 was lodged by PW1 Akbar Shaikh and thereafter the matter was investigated and the chargesheet was filed.

(3.) The learned Counsel appearing for the Appellant submitted that the death of Nazabi is suicidal one since according to him it is Nazabi who has herself set her on fire. The learned Counsel submitted that since last 6 to 7 years, the deceased alongwith the appellant was staying with PW1 who is the father in law of the appellant and father of the deceased and the said fact was not approved by Maula namely the son of PW1 and therefore, Maula was insisting that the deceased and the appellant should not stay with PW1 and on that count there used to be quarrels. According to the learned Counsel on the day of the incident, there was equally a quarrel between Maula and the deceased Nazabi wherein the Maula used a filthy language to the deceased Nazabi and therefore, the deceased has set herself on fire and has committed suicide. On the contrary it is the accused appellant who tried to extinguish the fire and has received injuries to hand and legs. He also submitted that it is Maula who has caused an injury to the leg of the accused by axe and the accused has lodged a complaint to that effect with the police station and therefore he submitted that the findings recorded by the trial Court that the accused is guilty and responsible for the death of the deceased Nazabi is erroneous. He further submitted that the Sessions Judge committed an error in relying upon the dying declaration recorded by the police constable who is PW6. According to him, the police ought to have made efforts to record the dying declaration through the Magistrate. He further submitted that the dying declaration which is recorded by PW6 and the endorsements which have been made by PW2 Dr.Ugane at Exhibits 13 and 14 are not trustworthy and therefore, the Sessions Judge committed an error in accepting that piece of evidence. The learned Counsel further submitted that the Sessions Judge committed an error in relying upon the depositions of PW1, PW3, PW4 and PW5 because according to him all these prosecution witnesses are close relatives of the deceased and PW1 and therefore, they are interested witnesses. The learned Counsel Mrs.Bhosale, appearing for the State, vehemently opposed the submissions made by the learned Counsel for the appellant. She submitted that the evidence which has been brought on record by the prosecution is cogent and consistent. According to Mrs.Bhosale, the learned Assistant Public Prosecutor, the prosecution has proved the dying declaration of the deceased which has been recorded by the police constable PW6. She submitted that even though it is recorded by the police constable that was recorded after the police constable had ascertained with the help of the medical officer PW2 that the deceased is in a fit mental condition to make a statement and therefore, it is submitted that such a statement is a reliable statement and can be accepted in evidence. The learned Counsel for the State further submitted that the dying declaration which has been recorded by PW6 is further corroborated by an oral dying declaration it has been deposed by PW1, PW3, PW4 and PW5 and, therefore, according to the learned Counsel for the State, there is no harm in relying upon and accepting and basing the conviction on the basis of dying declaration of the deceased. It is further submitted that the Chemical Analyser report shows that on a burnt piece of the saree and the soil which was recovered from the scene of offence remnants of the kerosene were found and that corroborates with the story of pouring of kerosene on the person of the deceased Nazabi as reflected in the dying declaration and, therefore, the learned Counsel for the State submitted that the prosecution has established the guilt of the accused beyond reasonable doubt and the conviction as recorded by the trial Court is just and proper and requires no interference at the hands of this Court.