STATE OF MAHARASHTRA Vs. ASARAM MAHADU DWANGE

JUDGEMENT

(1.) This is an appeal by the State challenging the order of aquittal of the accused who was tried by the Additional Sessions Judge, Aurangabad for committing the murder of his wife Nandabai by setting fire to her clothes after pouring kerosene on her, on the night between 13th and 14th May 1974.

(2.) A few relevant facts leading to the prosecution may be stated thus: The deceased Nandabai was the wife of the accused Asaram. They were married about five year prior to the incident. The accused is a resident of village Manoor, while the parents of the deceased are from the village Pokheri. It appears that after the marriage, both Nandabai and the accused were staying with her parents at their house at Pokheri. According to the prosecution, the deceased Nandabai and her sister Sakhrabai, who is a young girl of 13 years, were both sleeping on ota of the house and the incident took place at about 2 a.m. Sakhrabai who was examined by the prosecution turned hostile and was cross-examined by the prosecution. She did not support the case of the prosecution against the accused. In her evidence Sakhrabai stated that she did not know how Nandabai sustained burns nor did she ask her as to how she had received the burns. Admittedly, there was no eye witnesses to the incident. The prosecution, therefore, relied on circumstantial evidence and the evidence in the form of oral and written dying declarations of the deceased. The learned Additional Sessions Judge did not consider it safe to rely on the said dying declaration with the result that he acquitted the accused. It is this order of acquittal which has been challenged by the State before us.

(3.) Mr. Kamat, the learned Public Prosecutor, fairly conceded before us that the prosecution case against the accused rests solely on the oral and written dying declaration brought on record and he took us through the relevant evidence. The oral dying declaration is deposed to by Appa (P.W. 7), the brother of the deceased. In his examination in chief, he stated that on the night of the incident he had gone to the thereshing floor after taking night meals. At about mid-night, the accused himself came to the threshing floor and told him that Nandabai was burnt. He, therefore, accompanied the accused to his house. He found Nandabai with burn-injuries on her person in the front room. According to him, he asked her as to what had happened and she told him that her husband had burnt her and then she said, "My husband burnt me". According to him, she repeated this two or three times But in his examination- inchief itself, he retracted from what he said earlier and stated that Nandabai did not say "My husband has burnt me", but what she stated was "Melyane jalale" which means that "the cursed one burnt me". In his cross-examination he admitted that in spite of her being asked as to what had happened, she did not name any-body as having burnt her. in this state of evidence, it is not possible for us to accept the testimony of Appa We find his evidence to be wholly unreliable.