Decided on October 10,2017

Rukhmanbai W/O Waman Bhogade Appellant


S.M. Gavhane, J. - (1.) Appellantoriginal accused No.1 motherinlaw of the deceased Dropadabai who is convicted and sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/, in default, to suffer simple imprisonment for one year for the offence punishable under Section 302 of the Indian Penal Code (for short the IPC) and further convicted and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.200/, in default to suffer simple imprisonment for two months for the offence punishable under Section 498A of the IPC and the said substantive sentences were directed to run concurrently, by the judgment and order dated 09.05.2001, in Sessions Case No.111/1997, passed by the Additional Sessions Judge, Aurangabad, has challenged the said conviction and sentence.
(2.) Facts of the prosecution case, are as under: A] Mahadu Pansare (PW4) is the father of the deceased. Deceased was married to accused No.3 three years prior to the incident. Accused No.2 is sisterinlaw of the deceased. PW4 and all accused are residents' of Bidkin, Tq. Paithan, Dist. Aurangabad. After marriage of the deceased everything was happy for about three years. B] While the deceased was cohabiting with her husband accused No.3 at her inlaws house on 25.08.1996 at 09.00 am she sustained 85% burns. She herself extinguished the fire with water. The neighborers came to the spot of incident. They had called accused No.3. He and three others admitted deceased Dropadabai in injured condition in Sumananjali Hospital, Khadkeshwar, Aurangabad at about 11.00 am. On the same day, in the night Medical Officer Dr. Vinod Dhamande informed the same to the Police Inspector of City Chowk Police Station, Aurangabad. Thereupon, entry to that effect was taken in the station diary regarding Medico Legal Case and the HeadConstable Joshi was given the investigation of the same. Treatment was started on the injured in the aforesaid hospital. C] On 26.08.1996 while the deceased was being treated in Sumananjali Hospital, Aurangabad the Police HeadConstable of City Chowk Police Station, Aurangabad requested the Special Executive Magistrate to record the statement of Dropadabai. Accordingly the Special Executive Magistrate Bombale (PW5) went to Sumananjali Hospital and recorded dying declaration (Exh.28) of the deceased on 26.08.1996 between 12.40 to 01.05 pm, after she was examined by Dr. Sanjay Patne (PW6) and after he made endorsement on letter (Exh.33) addressed to the Medical Officer, Sumananjali Hospital that patient is fit to give statement, alleging that on 25.08.1996 at about 09.00 am she was inserting the string of her petticoat. She had quarreled with her motherinlaw since 23 days. Her motherinlaw/accused No.1 abused her saying that her parents have cheated her and her son i.e. accused No.3 and that her character is not good. On saying so, her motherinlaw assaulted her and poured kerosene in the can on her person and set her on fire by lighting the matchstick. They both were in the house. Thereafter, she came running outside the house and extinguished the fire with water in the bucket on pouring the water on her person. Meanwhile, neighborers Kadubai, Reubai Narayan Bogade and Kachru Bogade came there. At that time her husband accused No.3 had gone on the cart. Somebody had called him. He, Bhausaheb Thote and Kailas Jadhav admitted her in the Sumananjali Hospital, Aurangabad. D] Thereafter, on the same day i.e. on 26.08.1996 while the deceased was in Sumananjali Hospital the HeadConstable Joshi (PW2) recorded statement/dying declaration (Exh.20) of the deceased at about 06.00 pm after ascertaining about health of the deceased from the Medical Officer (PW6) in the said hospital, stating that she was married to accused No.3 four years prior to the incident. She has no issue. She resides with all the accused. After the marriage she was treated properly for 56 months by her motherinlaw. Thereafter as she has no issue and for bringing Rs.5000/ from her parental house for purchasing the jeep her motherinlaw, sisterinlaw and the husband frequently started harassing, abusing and beating her. She narrated the same to her father Madhav Pansare (PW4) 2 to 3 times and he convinced her and people from her inlaws house but people from her inlaws house did not listen and again continued to harass her. It was alleged that on 25.09.1996 at about 09.00 hours there was quarrel between her and motherinlaw on the ground that she used string of petticoat of motherinlaw to her petticoat, on the ground of dowry amount, that she had no issue and her motherinlaw on abusing and beating her, while she was in the house poured kerosene on her person and set her on fire by putting burning paper on her person. Therefore, she sustained injuries to both the hands, stomach and back. E] Dying declaration (Exh.20) recorded by HC Joshi (PW2) was sent to Police Station Bidkin and on the basis of the same Crime No.75/1996 was registered against accused for the offences punishable under Sections 498A, 307 r/w Section 34 of the IPC and PSI Mhaisekar (PW7) started investigation. In the night of 26.08.1996 the deceased was transferred for further management to the Government Medical College and Hospital, Aurangabad at 08.00 pm. She succumbed to burn injuries on 31.08.1996 at 17.35 hours. PSI Mhaisekar prepared inquest panchanama (Exh.35). Dr. Bhalchandra (PW1) conducted postmortem examination on the dead body. He opined that death was caused on account of 85% burns due to septicemic shock alongwith injuries found on the right parietal region and issued postmortem report (Exh.17). PSI Mhaisekar recorded the statements of witnesses including statement of PW4 father of the deceased to whom the deceased made oral dying declaration about involvement of all accused in the commission of offence. Panchanama (Exh.23) of spot of incident was prepared. F] After completion of the investigation PSI Mhaisekar submitted the chargesheet in the Court of JMFC, Paithan, who then committed the case to the Sessions Court, Aurangabad, which was then allotted to Additional Sessions Judge, Aurangabad for trial. G] The charge was framed against all the three accused for the offence punishable under Section 498A r/w Section 34 of the IPC and against accused No.1 for the offence under Section 302 of the IPC. Accused pleaded not guilty to the charge. Accused No.1 in her statement under Section 313 of the Code of Criminal Procedure stated that deceased was mentally affected. Deceased started stove. Deceased caught fire due to stove. She poured water on deceased and extinguished the fire. Deceased had given false statement. Deceased was taken to Jamkhed to cure her mental illness. No witness in defence is examined by the accused. H] In all seven witnesses were examined by the prosecution and it has relied on written dying declarations (Exh.20 and 28) and oral dying declaration made to PW4 her father by the deceased. Considering the evidence of the prosecution the trial Court has convicted and sentenced accused No.1 for the offences under Sections 498A and 302 of the IPC as mentioned in the introductory para and acquitted accused Nos. 2 and 3 of the offence under Section 498A of the IPC by the impugned judgment. Therefore, this appeal by accused No.1 challenging the conviction and sentence recorded against her.
(3.) Learned counsel appearing for the appellant submits that there is no consistency in the written dying declarations (Exh.20 & 28) and oral dying declaration made by the deceased to her father (PW4) and therefore, impugned conviction and sentence recorded against the appellant is liable to be set aside by allowing the appeal and prayed to acquit the appellant/accused No.1 of the offences for which she has been convicted.;

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