BARKAYA NAVASHYA GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order 3 rd February 2010 passed by the learned Additional Sessions Judge, Palghar in Sessions Case No.75 of 2008, thereby convicting the Appellant for the offence punishable under Section 302 of Indian Penal Code ("IPC" for short) and sentencing him to suffer imprisonment for life and to pay fine of Rs.2000/- and in default to suffer rigorous imprisonment for six months, the Appellant has approached this Court.

(2.) The prosecution case in brief as could be gathered from the material placed on record is thus :- The deceased was married to the Appellant before nine years. They were blessed with three children. It is the prosecution case that the Appellant had suspicion on the character of the deceased and on account of the same, he used to ill-treat her. On 17th May 2008 at around 8:00 p.m., when the deceased was at her house, the accused, who was working as mason came home and asked her as to where she had gone and who was accompanying her. He abused the deceased, made her fall on the ground and forced himself upon her. Thereafter he took out a brick and assaulted with the said brick. Then he dragged her out of the house on the platform in front of the door. He again assaulted her. It appears that immediately PW-1 - Mainabai Bhirare, mother of the deceased, PW-2 - Ravi Bhirare, brother of the deceased came to know about the same. They came to the spot, arranged rickshaw and took the deceased to Talasari Hospital. However, since condition of the deceased was serious, she was asked to be taken to Cottage Hospital, Dahanu. Again thereafter she was shifted to KEM Hospital, Mumbai. It appears that on 23rd May 2018, her dying declaration came to be recorded by PW-4 - Police Head Constable Jashwant Valavi. On the basis of the said dying declaration, an FIR came to be registered for the offence punishable under Section 306 of IPC. The deceased succumbed to injuries on 26 th May 2008 and as such, the offence was converted to one under Section 302 of IPC. Postmortem was conducted at KEM Hospital. At the conclusion of investigation, a charge-sheet came to be filed in the Court of JMFC, Dahanu. However, since the case was exclusively triable by the learned Sessions Judge, the same came to be committed to the learned Additional Sessions Judge, Palghar. The learned Trial Judge framed the charges for the offence punishable under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, learned Trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present Appeal.

(3.) Learned counsel for the Appellant submits that the learned Trial Jude has grossly erred in relying on the evidence of PW-1 - Mainabai Bhirare, PW-2 - Ravi Bhirare and PW-3 - Vikas Gaikwad. He submits that even reliance placed by the learned Trial Judge on the so called dying declaration is without merit. 4] Learned APP on the contrary submits that there are three eye witnesses i.e. mother, brother and son of the deceased. She submits that their evidence is cogent, consistent and trustworthy. She further submits that, evidence of these witnesses is corroborated by the dying declaration below Exh.12 recorded by PW-