STATE OF MAHARASHTRA Vs. GAJANAN BABURAO PHAKATKAR

JUDGEMENT

(1.) BY this appeal against acquittal the Appellant-State of Maharashtra has taken exception to the Judgment and Order dated 10th May 1988 passed by the learned additional Sessions Judge, Pune, by which the Respondent has been acquitted of the offences punishable under section 302 and 498a of the Indian Penal Code, 1860.

(2.) THE Respondent/accused was the husband of late mrs. Ujwal Gejanan Phakatkar. The Respondent married to the deceased Ujwala sometime in the year 1980 and they had two sons aged about 7 years and 5 years. The respondent and his deceased wife were staying at bhosari, Pune. The case of the prosecution is that the respondent was addicted to vices and was subjecting his wife to ill-treatment. it is the case of the prosecution that on or about 22nd January 1982 there was a quarrel between the Respondent and the deceased Ujwala and the Respondent tried to set deceased Ujwala on fire by pouring kerosene on her person. At that time the deceased received some burn injuries and she narrated the said incident to her father. The case of the prosecution is that her father did not file any Police complaint with the hope that the relations between the respondent and his wife will improve.

(3.) THE prosecution has alleged that on 7th May 1987 at about 7. 00 a. m. the Respondent poured kerosene on the person of his wife Ujwala and set her on fire. The case is that the deceased was serving in the office of the municipal Corporation of Pune. She returned to her house at "about 5. 00 p. m. and started cooking on gas stove. The two minor sons were playing outside. After the deceased returned to the house, the sons also returned to the house. 7th May 1997 was Thursday which was a holiday for the Respondent. The case of the prosecution is that the Respondent came from behind and poured kerosene on the deceased Ujwala and lighted a match stick and set her on fire. According to the prosecution elder son Chetan witnessed the incident as he was on the cot in the room. The deceased ran out of the room and one Fakir Mohammed who is running a cycle shop near the premises of the Respondent along with the other neighbours extinguished the fire with sand and water. The prosecution case is that the Respondent did not make any attempt to extinguish the fire though he was present. The victim was taken to the Sasoon hospital at Pune where she was admitted in burns ward. According to the prosecution on 8th May 1987 at about 1. 40 a. m. the first dying declaration was made by the deceased Ujwala before the Special Judicial Magistrate in which she purportedly stated that she was wearing a silk saree which-caught fire accidently while she was cooking and therefore, she suffered burn injuries. She stated that it was her husband who extinguished the fire and that her sons were present in the room when the incident occurred. The parents of the deceased were informed of the incident who rushed to the Hospital and remained in the hospital till the death of Ujwala on 12th May 1987. The case of the prosecution is that the deceased Ujwala told her mother Vijaya that it was her husband who had set her on fire and as she was hopeful of survival, in the interests of the children, she had given a false statement to the Special Judicial magistrate. On 12th May 1987 at 9. 00 a. m. Dr. Chaudhari recorded statement of Ujwala in which she stated that she had a quarrel with her husband and the husband poured kerosene on her. When she tried to light the stove to cook rice her kerosene soacked saree caught fire. The fire was not extinguished by the Respondent who was nearby. Ujwala expired at 12. 45 p. m. on the same day before the Police could be called for recording dying declaration.