MOHAN SADHU KAWALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this appeal the appellant (hereinafter referred to as "the Accused" ) seeks to quash and set aside the judgment and order dated 22nd November, 1999 passed by the 2nd Additional sessions Judge, Satara, in Sessions Case No. 88 of 1990, convicting the accused for an offence under section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to suffer further R. I. for a period of six months.

(2.) THE brief facts of the prosecution case are as follows:

(3.) ON committal of the case, a charge under section 302 of Indian Penal Code came to be framed. In all 14 witnesses have been examined by the prosecution in order to prove its case. Amongst these witnesses, were the two eye witnesses, i. e. Balabai Narayan Kambale (P. W. 8) and Sanjay Shamrao gaikwad (P. W. 11 ). In order to prove the circumstance of the deceased Lalubai having made an oral dying declaration, P. W. 12 Eknath Kamble, who was the Police Patil, was examined and he produced the statement in writing which is said to be the record of the dying declaration, at Exhibit 32/1 and was said to have been signed by eight villagers who had gathered there immediately after the incident. Some other witnesses like Ananda ramchandra Kambale ( P. W. 5) and Kamal yedu Lade (P. W. 6) were examined to support the case of prosecution relating to the making of an oral dying declaration. In order to prove the dying declaration made to the Special Judicial magistrate, the prosecution examined Shivaji Laxman nalawade, Special Judicial Magistrate (P. W. 9 ). It also examined Dr. Vilas Kawachale (P. W. 10), who had given the endorsement on the dying declaration about the deceased being conscious. The post mortem notes were also proved through the same doctor and are at , Exhib it 17. The - same indicated that the deceased Lalubai had suffered 100% burns. The defence of the accused, as can be read from the suggestion put to the witnesses in the 313 statement and written statement of the defence filed on behalf of the accused at Exhibit 39, was to the effect that the deceased had mortgaged her land to the accused five years ago for an amount of rs. 400/ -. That this transaction has been oral. The land of the deceased admeasuring 11 gunthas had been handed over and was being cultivated by the accused. The deceased was not being maintained by her husband and she was constantly fighting with her sister. That the first wife of the accused had deserted him and in such circumstances, the accused and the deceased developed an illicit relationship. The accused was maintaining the deceased and her son. That the accused was of Mang community whereas the deceased and most of the witnesses belonged to Mahar caste. The persons from Mahar caste did not like the illicit relationship between the accused and the deceased. The deceased felt that the accused should get married to her but the accused was not in a position to marry, and for this reason, the deceased was upset with the accused. When the accused contracted a second marriage shortly before the incident with another woman, the deceased was upset. The police patil of the village had an evil eye on Lalubai. As Lalubai was upset, on two occasions, she had attempted to commit suicide by consuming poison. That the accused used to regularly go for residing with lalubai and used to stay over night at her place. When he used to go for such overnight stay, her sister and son used to go to reside at the house of another sister Tanubai. That on 12th February, 1990, as usual, he had gone for stay with the deceased, and, therefore, the son and the sister of the deceased i. e. Sanjay and Balabai, had gone away to the house of Tanubai. The accused was alone with the deceased at about 8 p. m. , at that time, the deceased asked him as to why he married a second time ana threatened to set herself on fire. The accused tried to push the deceased but the deceased poured kerosene on her body and set herself on fire. The accused brought her outside the house and tried to extinguish the fire by putting gunni bags from the house on her person. While doing so, he himself suffered burns. His clothes were also burnt. At that time, the police patil came there along with some others and attempted to beat him and due to fear, the accused ran away. That he was conducting a liquor business but was not paying a bribe to the police patil. For this reason also, the police patil used to tell him that he will take revenge. It was suggested by him that it was the police patil who was instrumental in recording of the false dying declaration and instigating all the witnesses to depose in favour of the prosecution. The other witnesses examined were the panchas and the police patil and on appreciation of the aforesaid documents and evidence, the trial court passed the impugned judgment and order.