- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Nagpur Bench, upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short IPC ) as was recorded by the learned Sessions Judge, Wardha, and the sentence of life imprisonment was awarded.
(3.) The prosecution version is as follow: Appellant was prosecuted for the offence punishable under Section 302 IPC on the allegations that on 17th March, 1989, at about 5.00 P.M. at Mouja Shekapur (Mozari) she committed murder by intentionally causing death of Babital, wife of Pandurang Lokhande on account of a preceding quarrel. Deceased Babital was residing in the neighbourhood of appellant at Mouja Shekapur. On the date of incident, her husband P.W.3 Pandurang had gone to the field of one Murlidhar Barade. At about 5.00 P.M. he returned home. He noticed his wife in the burnt condition. The fire was extinguished and she was led on the cot. There was quarrel between the deceased Babital and the appellant at about 4.00 P.M. which was witnessed by son of the deceased Sharad (PW 1). The quarrel was also witnessed by Bhaurao (PW 2) the neighbour. After this quarrel and exchange of ugly abuse, the appellant brought kerosene bottle from her house and poured the same on the deceased. She also lit her by matchstick from matchbox. Thus appellant set the deceased on fire. When she tried to go by the side of shed she also caught fire. Shard (PW 1) poured water on the person of his mother and tried to extinguish the fire. Meanwhile because of ugly unbearable abuses between the deceased and the appellant Bhaurao (PW2) had left the said place. He, however, returned back from his house after hearing shouts of Sharad (PW 1) that his mother was set on fire. He noticed the deceased in flames so he took a gunny bag and put on the person of the deceased and extinguished the fire. Thereafter, the husband of the deceased Pandurang came there. Thereafter, deceased was taken to the hospital at Wardha. It is alleged that Sharad (PW1) had disclosed to his father Pandurang (PW 3) that there was a quarrel between his wife and the appellant. The deceased was admitted in the hospital. Dr. Divekar (PW 4) was there. He was asked to certify by P.H.C. Prabhakar (PW. 5) as to whether the patient Babital was in fit condition to make statement. He certified that she is in fit condition to make statement. Thereafter, Head Constable Prabhakar Wasankar (PW5) recorded the statement of the deceased Ex. 33 is the same certificate of fitness of the said Baital was also endorsed on the same, which is separately exhibited. The said statement was recorded in presence of panchas. Offence under Section 307 IPC was registered against the appellant bearing Crime No. 0/1989. Thereafter, the requisition was sent to the Naib Tahsildar and Executive Magistrate Walaskar (PW8) for recording her dying declaration. He went there and after noticing that there was no Medical Officer available in the hospital, satisfied himself by putting questions to the deceased that she was fit to reply the questions, he recorded her dying declaration. In the said dying declaration she stated that when she was winnowing wheat by sitting in the courtyard, the appellant came there. There was quarrel, appellant threw kerosene on the person of Babital and set her on fire. It was the appellant who had poured kerosene on her person and set her on fire. Investigation was done by P.S.I. Premdas Sardar. He had gone to the spot of incident and prepared spot Panchnama. He seized the pieces of burnt sarees etc. He had also seized kerosene bottle from the house of the appellant. He has seized some of the articles and clothes from the appellant. He arrested the appellant. It may be stated that the deceased, Babital, had sustained burn injuries to the extent of 85% in the incident and she expired on 18.3.1989. Further inquest panchnama was prepared. Dead body was sent for postmortem. Autopsy was conducted by Dr. Divekar at Medical hospital. After due investigation, charge sheet against the appellant was submitted for the offence under Section 302 IPC, before the court of Judicial Magistrate First Class, Hinganghat, who in turn committed this case to the court of Sessions. Since the accused person pleaded innocence, trial was held. Nine witnesses were examined to further the prosecution version. Sharad (PW1) is the eye-witness. Bhaurao (PW2) is the neighbour of the deceased and the appellant, who after hearing ugly abuses between the appellant and the deceased went to his house and returned after hearing shouts of Sharad (PW1). Pandurang is the husband of the deceased. The accused to establish the plea of innocence examined two persons. The trial court accepted the evidence of Sharad (PW1) as trustworthy and to have been corroborated by the evidence of Bhaurao (PW2) and other evidence on record for the sake of dying declaration before the police office and the Executive Magistrate. Accordingly, the accused was found guilty. In appeal, it was stated that PW1 s evidence could not have been accepted because he was a young boy and PW2 s evidence also not believable. It was primarily stated that PW1 did not tell PW3, the father, as to who was the author of the crime. The High Court found no substance in the stand. The evidence of the child witness was cogent and credible. It is to be noted that the defence took the plea that the deceased had committed suicide while setting herself on fire because of the allegation of illicit relations with the saintly person.;