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Baban-vs-State Of Maharashtra on 11 July, 2001

Bombay High Court Baban-vs-State Of Maharashtra on 11 July, 2001
Equivalent citations:II (2002) DMC 233
Author: P Hardas
Bench: J Patel, P Hardas

JUDGMENT

P.V. Hardas, J.

1. The present appeal has been filed by the appellant/original accused in Session Case No. 110 of 1994, challenging his conviction and sentence passed by the Joint District and Sessions Judge, Chandrapur, convicting him for an offence punishable under Section 498A of the Indian Penal Code and Section 302 of Indian Penal Code, and sentencing him to suffer R.I. for one year and fine of Rs. 1,000/-, in default to suffer R.I. for six months and imprisonment for life and fine of Rs. 2,000/-, is default to suffer R.I. for six months, respectively.

2. A reference to the facts relating to the conviction of the appellant for the aforesaid offences is necessary. The appellant, who is convicted for having committed murder of his wife Nita, was married to her about 7 or 8 years back. According to the prosecution, after the birth of the eldest son, the appellant who was unemployed, got addicted to liquor and in an inebriated condition, used to assault his wife principally on account of demand for money made by the deceased wife for meeting the household expenses.

3. According to the prosecution, things continued in this manner and ultimately on 3.2.1994 at about 4 p.m. in the residential house of the accused situated in Somnathpura in Rajura Tahsil, District Chandrapur, the appellant is alleged to have quarreled with the deceased and had asked his son P.W. 2 Deepak to fetch a match-box from the shop and after Deepak had brought the match-box, the appellant is alleged to have poured kerosene on the deceased and set her ablaze. The prosecution further alleges that the appellant thereafter wrapped a blanket around the deceased and extinguished the flame. On the pretext of informing the relatives, the appellant is alleged to have left his residential house. P.W. 9 Gaurabai Atram, who was the neighbour of the deceased, reached the house of the appellant while the accused was extinguishing the flame. P.W. 10 Shantabai, another neighbour of the deceased, had taken the deceased to the hospital.

4. Since the deceased had suffered burns, the doctor at Rajura had advised that the deceased be shifted to the General Hospital at Chandrapur. The deceased, accordingly, was admitted in the General Hospital at Chandrapur. P.W. 11 – PSI Raghunath Fuge, who was on patrolling duty, received a message from the Rajura Police Station, informing him about the admission of the said lady in the Rajura Hospital. P.W. 11, accordingly, rushed to the Rajura Hospital, but was informed that the deceased had been shifted to Chandrapur Hospital, and he, therefore, proceeded to Chandrapur Hospital. PSI Fuge then recorded the statement of Nita, the deceased, and sent his report to the PSI Rajura. On the basis of the statement of the deceased, an offence under Sections 307 and 506 of the Indian Penal Code came to be registered.

5. During investigation, P.W. 5 Sudhakar Rotkar, Naib Tahsildar, recorded the dying declaration of the deceased. The original dying declaration of the deceased was sent in a sealed envelope to the police. It is unfortunate that when the case came up for trial, the original dying declaration had been misplaced by the police and what was tendered in evidence, was a Xerox copy signed by P.W. 5 Sudhakar Rotkar, which the Trial Court rightly refused to accept and, therefore, came to be marked as Article 11. During the investigation, accused was also referred for medical examination and the injury certificate of the accused is at Exh. 16. P.W. 1 Dr. Ramchandra Jakkipelli, who had examined the appellant on 9.2.1994, had found three superficial wounds. According to P.W. 1, the age of the injuries was more than two days, but less than 5 to 6 days. P.W. 1 had opined that these injuries were possible by burn.

6. After the death of Nita on 14.2.1994, the inquest panchanama Exh. 11 came to be drawn. Post-mortem was conducted by Dr. Amar Poddar and his post-mortem report is at Exh. 32. Another piece of circumstantial evidence on which the prosecution relies heavily, is the seizure of the clothes of the deceased and the appellants, on which kerosene was detected by the Chemical Analyser.

7. The trial Court framed charge against the appellant for offence punishable under Sections 498A and 302 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. In respect of the offence under Section 498A of the Indian Penal Code, the prosecution examined P.W. 3 Bhima, father of the deceased Nita, and P.W. 4 Ganpat, the brother of deceased Nita. In respect of offence under Section 302 of the Indian Penal Code, the prosecution examined P.W. 2 Deepak, son of the appellant and the deceased Nita, P.W. 8 Dadaji Dhandare, who had recorded the statement of the deceased, P.W. 5 Sudhakar Rotkar, Naib Tahsildar, who recorded the dying declaration Article 11, P.W. 9 Gaurabai and P.W. 10 Shantabai, neighbours of deceased Nita, who had

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