N. V. Abholkar, J. - (1.)Appeal u/s 374 (2) of the Code of Criminal Procedure, 1973, is directed against judgment and order dated 28.10. 2004 delivered by 3rd Ad Hoc Additional Sessions Judge, Jalgaon, in Sessions case No. 69/2004. By the impugned judgment, trial Court has held appellant guilty for offences punishable u/s. 302, 498-A of ipc and sentenced him to suffer life imprisonment and rigorous imprisonment for 3 years on respective counts. In addition, he is also sentenced to fine of Rs. 5,000/-on each count and rigorous imprisonment for two months in case of default also on each count.
(2.)The incident in question took place on 29.1,2004 at about 7 or 7-30 a. m. at the place of accused i. e. village Punkheda Tq. Raver Dist. Jalgaon. There is no dispute that victim Sarlabai was married to appellant -accused about 10/11 years ago and the couple is gifted with 3 children, a son and two daughters. As admitted by PW 3 Vasant (father of the deceased) , eldest son was aged 10 years and daughters wefe aged 7 and 5 years at the time of alleged incident. So far as incident is concerned, statement of victim recorded by PW 5 Devendra Patil, then PSI attached to Zilla Peth Police Station, on 29.1.2004 between 13-20 to 13-40 hours at Civil Hospital. Jalgaon, was treated as FIR and offence was registered on the basis of the same. In the said dying declaration, victim has given a detailed story. She claimed that since about one month prior to the alleged incident, husband had started demanding divorce by expressing that he wanted to marry an educated girl. He was serving at Muktainagar Kanya Shala at the material time. On 26.1.2004 at about 3 p. m. husband had inflicted an injury on the left arm of victim by using sickle as a weapon. Even on 28.1.2004 at about 6p. m. husband had caught victim by hair and struck her head on the wall. On that evening, husband had departed for the place of his sister and returned only by about 9-30 p. m. No complaints were lodged about these earlier incidents. On 29.1.2004 at about 7-30 a. m. , husband again raised his demand for divorce. She was abused in filthy language. Wife showed her disinclination towards the proposal of divorce by pointing out that they already have 3 children and now they can not think of separation. According to sarlabai, thereafter husband poured kerosene upon her person from a container and ignited her wearing apparel by using matchstick and ran away. She ran in the courtyard in burning condition when one sopan Koli extinguished her by using a chaddar. Thereafter, her father arrived on the scene, who took her initially to Rural hospital, Raver, and then to Government hospital. Jalgaon. Upon completion of investigation into this offence, chargesheet was filed against accused, who was tried for offences punishable u/ss. 302, 498-A of IPC by 5th Ad Hoc additional Sessions Judge, Jalgaon, and upon finding of guilty, was convicted. as described earlier.
(3.)In order to substantiate the charges, prosecution has relied upon oral evidence of as many as 13 witnesses, who can be described in brief as follows in the order of their importance for the purpose of prosecution: pw 4 Vijay Patil is Police Patil of Punkheda. He claims to have reached the location by accident, to have heard victim Sarla, who accused her husband of having set her on fire and who also gave an intimation to that effect to father of Sarla namely Vasant thakane (PW 4). The father has complimented the deposition of Police Patil. There are two recorded dying declarations first one was recorded by PSI Devendra Patil (PW 5) and this dying declaration (Exh. 23) was treated as FIR. PSI Patil has also carried out part of the investigation. Second dying declaration was recorded by PW 9 ramlal Brahmane. The dying declaration is at Exhibit 36. These two dying declarations were recorded while Sarla was admitted at civil Hospital, Jalgaon. Those are recorded with a gap of hardly 5 minutes; the first one between 13-20 to 13-40 hours and second one between 13-45 to 14-00 hours. It can be said that these dying declarations are recorded within 7 to 8 hours from the occurrence, which fact is laid emphasis upon by the learned prosecutor. There is one more dying declaration recorded incomplete. It was tried to be recorded by Executive Magiatrate, Raver, while patient was initialy taken to Rural Hospital, raver, PW 12 Dr. Gopal Mahajan has deposed about the same, who was medical officer in-charge. To the Police as well as to the Executive Magistrate, Dr. Mahajan has certified that patient was semi conscious and not in a position to make a statement (Exhs. 43 and 44). It appears that Executive magistrate still tried to record a statement and failed to record the same. The statement recorded is only to the effect. "vernacular matter omitted". The incomplete dying declaration is at Exhibit 44. Dr. Uihas Taskhedkar (PW 11) was casualty medical officer at Civil Hospital, jalgaon, when both the dying declaration (Exhs. 23 and 36) were recorded by respective officers and he has certified about fitness of patient to make a statement. Panch Asha Nanaware (PW 1) was present when inquest was drawn. PW 2 Ashok is Police Head Constable and he had carried muddemal property to Forensic Science laboratory. PW 6 Sopan Koli was a panch witness when spot panchanama (Exh. 26) was drawn. Sopan has turned hostile. Dr. Surwade (PW 10) had performed post mortem. The fact of Sarla having suffered burn injuries not being disputed, the evidence of these 3 witnesses has become insignificant. PW 7 Bali and PW 8 Ramchandra are panch witnesses to discovery panchanama u/s. 27 of the Indian Evidence Act, prosecution claimed that sickle, which was used as weapon by accused in the incident dated 26.1.2004, was discovered at the instance of accused. both these witnesses having turned hostile, the documents were technically proved by investigating officer PI deshmukh (PW 13).