NANDU S/O VITTHAL SONAWANE Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY
Nandu S/O Vitthal Sonawane
STATE OF MAHARASHTRA
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S.M. Gavhane, J. -
(1.) . The appellant accused who has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/ (Rupees Ten Thousand), in default, to suffer rigorous imprisonment for two years for the offence punishable under Section 302 of the Indian Penal Code (for short the IPC)as per the judgment and order dated 09.04.2002 passed by the 3rd Adhoc Additional Sessions Judge, Ahmednagar, in Sessions Case No.196/2001 has preferred this appeal challenging said conviction and sentence.
(2.) The prosecution case as it reveals from the police papers, is as under:
A] The deceased Kavita was daughter of PW4 Baban Harer resident of Dehare, Tq. & Dist. Ahmednagar. She was married to accused five years prior to the incident and after marriage she went to the house of the accused at Pokhardi, Tq. & Dist. Ahmednagar for cohabitation. She has two issues Akash and Ashwini from the wedlock with accused.
B] While the deceased was cohabiting with accused in the night on 27.09.2001 at 12.00 night when she was sleeping with accused and children in the house she sustained 96% burns. Thereupon, accused admitted her in Civil Hospital, Ahmednagar at 02.00 am on 28.09.2001. The Medical Officer on duty in the Hospital informed Police Station MIDC, Ahmednagar that accused has admitted Kavita the deceased in the hospital for medical treatment on burn injuries. After getting the said information on telephone the concerned police constable took entry in the station diary at 02.05 hours. The Police Station Officer directed Head Constable Avahad to make necessary arrangement for recording the dying declaration (for short the D.D.) of patient Kavia and to make further enquiry. HC Avahad recorded statement of injured Kavita at 9.15 am on the same day.
C] The Police Head Constable Avahad then went to the spot of incident i.e. the house of the accused on 28.09.2001 and prepared panchanama of spot of incident between 10.00 to 10.55 am in presence of panchas Popat Ramchandra Kale (PW3) and Balasaheb Ambadas Warule. He seized two golden beads, burnt piece of saree, one piece of white burnt petticoat, ash of the clothes, a piece of bangle, one iron stove and glasslantern with kerosene from the spot of incident under same panchanama.
D] Police Head Constable Avahad also issued letter to the Special Judicial Magistrate on 28.09.2001 informing him that deceased Kavita is admitted in Civil Hospital, Ahmednagar in injured condition and requesting him to come and record the D.D.. After receiving the said letter Special Judicial Magistrate, Ahmednagar (PW2) requested Medical Officer Dr. Swati Naik (PW7) to examine the patient and verify whether the patient is conscious and able to give statement. Both Pws.2 and 7 went to the burns ward and Medical Officer Dr. Swati Naik (PW7) examined the patient and made endorsement that patient was conscious, cooperative and well oriented and able to give statement. Thereafter, the Special Judicial Magistrate (PW2) recorded D.D. (Exh.20) of Kavita the deceased which runs as under:
"She stated that her marriage was performed with accused prior to five years. She is having two children. There used to be quarrel between her and husband. Her husband is having relation with one Alka Barawkar, there was quarrel on that count. Incident took place yesterday in the night of 12.00 hours. While she was asleep, her husband poured kerosene and set her on fire. She shouted and her husband extinguished the fire by putting blanket (). Her husband brought her in the hospital. She had stated earlier about quarrel to her parents. They did nothing. She, her husband and her children are in the house. At that time children were sleeping. It is stated that she held her husband responsible for the said incident".
E. After recording D.D. as above PW2 had delivered it to the MIDC Police Station and on the basis of said D.D. Crime No.118/2001 for the offence punishable under Section 307 of the IPC came to be registered in MIDC Police Station on 28.09.2001 at 13.05 hours. The victim Kavita died in the hospital on 28.09.2001 at 03.15 pm while taking treatment. Therefore, offence under Section 302 of the IPC was added in the crime initially registered in the police station. The intimation in this respect was given to the JMFC, Ahmednagar. The Police Head Constable Shelke then recorded the inquest panchanama of the dead body between 17.20 to 18.05 hours on the same day. Dead body was referred for postmortem examination. The Medical Officer Dr. Patil (PW5) and Dr. Swati Naik (PW7) conducted postmortem examination in the evening and issued postmortem report (Exh.25). It was opined that probable cause of death was due to hypothalamus struck due to 96% of superficial and deep burn. Further investigation was carried by the Investigating Officer API Patil (PW8). He recorded statements of witnesses and sent seized articles to the Chemical Analyzer for analysis. Accused was arrested on 28.09.2001 and he was got medical examined as he sustained 5% superficial burns to both the hands and doctor issued certificate. He was in jail during trial. API Patil collected the report of the Chemical Analyzer.
F. After completion of the investigation chargesheet was submitted in the Court of JMFC, Ahmednagar, who committed the case to the Sessions Court, Ahmednagar as offence under Section 302 of the IPC was exclusively triable by the Sessions Court. Then the case was assigned to the 3rd Adhoc Additional Sessions Judge, Ahmednagar.
G] The charge was framed against the accused for the offence punishable under Section 302 of the IPC, to which accused pleaded not guilty and claimed to be tried. His defence is denial. No defence witness has been examined by the accused. It appears that according to accused death of the deceased was suicidal.
H] To prove guilt of the accused the prosecution examined in all eight witnesses and mainly relied upon the panchanama (Exh.22) of spot of incident, Chemical Analyzer's report and D.D. (Exh.20).
I] On considering the evidence adduced by the prosecution learned trial Court held that the prosecution has proved offence under Section 302 of the IPC against the accused and sentenced him as referred earlier in introductory para of this judgment, which is under challenge in this appeal by the appellant/accused.
J] By order dated 16.09.2002 impugned order of sentence has been suspended during pendency of the appeal and the accused was released on bail.
(3.) We have heard learned Advocate for the appellant/accused and learned APP appearing for the respondent/State and with their able assistance we have perused the evidence adduced by the prosecution and the impugned judgment and order.;
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