MOHAMMAD AFZAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant-accused has challenged validity and legality of the judgment and order dated 1st March, 2003 in Sessions Case No. 101 of 1996 passed by the 1st Ad-hoc Additional sessions Judge, Pusad whereby the accused has been convicted for commission of offence of murder punishable under Section 302 of the indian Penal Code and was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment of one month.

(2.) The facts in brief are that deceased kamal was married with appellant-accused mohammad Afzal; they were living together in shivaji Ward, Pusad and out of wedlock they were begotten with two children. The accusation is that the appellant had quarreled with deceased kamal on 16. 5. 1996 at about 10. 15 p. m. and consequently he had poured kerosene oil all over her body after assaulting her, lighted a matchstick and set her on fire. In the result, Kamal had suffered extensive bums upto hundred percent. She was initially removed to Rural hospital, Pusad from where she was referred to civil Hospital, Yavatmal for further treatment. It is the case of the prosecution that during the course of investigation, three dying declarations were recorded, In her dying declaration (exhibit 76)recorded on 16. 5. 1995 at about 23. 00 hours by PSI Rathod (PW 11) in presence of panchas, kamal stated that she had quarrel with her husband over expenses, her husband had poured kerosene on her body, set her on fire by a lighted matchstick and ran away. The fare was extinguished by persons in the neighbourhood and her mother and then she was brought to hospital. PW 11 PSI Rathod was informed about the incident by one Raja Mahesh Tiwari (PW 1, brother of deceased ). The second dying declaration was recorded by Executive magistrate Shri Sidhu (PW 8) as per exhibit 65 on 16. 5. 1996 at about 23. 20 hours. The third and last dying declaration was recorded by Executive magistrate Shri V. G. Poratkar (PW 6) as per exhibit 53.

(3.) In support of the appeal, learned counsel for the appellant submitted that considering the extensive burns almost upto hundred percent, the trial Court ought to have held that deceased Kamal was unable to make statement. Learned counsel for the appellant also argued that PW 1 Raju Tiwari (brother of deceased), pw 2 Rajkumari (sister of deceased), pw 3 Sarjerao, PW 4 Gautambai (mother of deceased) and PW 5 Manoj (son of deceased)were declared hostile witnesses and they did not support the prosecution case. According to learned counsel for the appellant, the alleged dying declaration recorded by PW 6 Poratkar was in printed proforma and the alleged dying declarations recorded by PW 8 Harbansing and psi Rathod were also suspicious as deceased must have been unconscious as a result of hundred percent bums received by her as, according to admission given by PW 10 Dr. Thuse who performed post-mortem examination, tongue of the deceased was totally burnt. Learned counsel for the appellant urged to set aside conviction on the ground that there were serious infirmities in evidence.