DEVA DUDHYA BHIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal preferred by the accused, who has been convicted in Sessions Case No. 50 of 1977 by the learned Additional Sessions Judge of Dhule of the offence punishable under section 304 (part I) of the Indian Penal Code. The said order of conviction has been recorded by the learned Additional Sessions Judge on 14th of February, 1978 and by an order of the same day he sentenced the accused to rigorous imprisonment for ten years. The accused was originally tried for an offence punishable under section 302 of the Indian Penal Code on the ground that he committed the murder of his wife Sarubai by setting fire to her clothes with the intention of causing her death.

(2.) The scene of offence is situated in a village called Pilode in Shripur Taluka of Dhule District. In that village, there are two localities known as new locality and old locality. In the new locality the accused was residing with his wife and a daughter for two months before this incident took place in a hut which had been allotted to him by the Government. His other relations were residing in the old locality. His luckless wife had been married to him 5 or 6 years before this incident and she had given birth to one daughter just two month before the date of the incident which is 17th of March, 1977. On the night of 17th of March, 1977 between 9 p.m. and 9.30 p.m. when Sarubai was sleeping in the hut after the dinner, the accused came in the hut apparently under the influence of liquor. At that time he took out a match-box and lighting one match-stick threw it on the body of Sarubai who was at that time wearing a saree and a blouse. Her clothes immediately ought fire and she raised a hue and cry and getting panicky rushed out of the hut and came out in the open. Hearing her shouts several neighbours came there on the scene. Of them, one Naga Zipa (P.W. 2) identified the accused who was running away from the scene. Other witnesses assembled on the scene extinguished the fire.

(3.) The brother of the accused, one Shamrao Dudhya, arranged for a bullock cart in which Sarubai was taken to village Thalner. At village Thalner, the Police Patil gave his report, which is at Exhibit 36, to Head Constable Kashinath Patil. In the dispensary at the same place, Sarubai was examined by Dr. Vasaikar who noticed four injuries on her body, which he has described as superficial burns. He, however, gave the opinion that she was in a fit condition to make a statement, whereupon Head Constable Patil recorded her complaint, which is Exhibit 33. This has been later treated as a dying declaration, in view of the fact that ultimately Sarubai succumbed to her injuries. Thereafter Dr. Vasaikar got Sarubai transferred to the Cottage Hospital at Shirpur for the further treatment because in his opinion the patient required treatment for a period longer than ten days. Dr. Patil, who was the Medical Officer of the Cottage Hospital, received sarubai in the hospital at about 9.00 a.m. on 18th March, 1977. Sarubai stayed in the hospital from 18th of March, 1977 she ultimately died. However, on the date on which she had been admitted, namely, on 18th of March, 1977, the Executive Magistrate of Shripur recorded a statement of Sarubai at about 12.00 noon. This statement is at Exhibit 19, which has also been treated as a dying declaration. After the death of Sarubai, the charge, which has been originally registered under section 325 of the Indian Penal Code, was altered to one under section 302 of the Indian Penal Code. It may also be mentioned at this stage that Sarubai had made a statement to the village Kotwal, one Ramsingh Koli, and in that statement she has mentioned that the accused-her husband-had set fire to her clothes. On these facts, which include the two dying declarations in writing and one oral dying declaration, the accused was put up for trial in the Sessions case referred to above and was ultimately convicted as mentioned earlier in this judgment.