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PETITIONER: NATHU

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       04/08/1999

BENCH: G.T.Nanavati, S.N.Phukan

JUDGMENT:

     The appellant has been convicted under Section 302 IPC by the Court of Sessions Judge, Nagpur, for causing death of his  wife, bypouring kerosene on her person and setting her. ablaze.   The  High  Court  of   Bombay  has  confirmed  his conviction.  Hence, this appeal by Special leave.

     The  conviction  of the appellant is based upon  dying declarations.   Apart from the three oral dying declarations made  before PW-l, Ambar, PW-2 Suresh and PW-5 Mandabai, the prosecution  had relied upon two written dying declarations. The  first  such  dying declaration was recorded  by  P.S.I. Mashirkar  PW-6  who  was then attached  to  Kotwali  police station.   After receiving a telephone message at the Police Station  at about 3 p.m.  that one woman had sustained  burn injuries  in Hiwarl Nagar Zopadpatti near the Power House he rushed  to that place and recorded the statement(Ex.  34) of Vandana.   He  then  went  back to the  Police  station  and registered an offence on the basis thereof.

     Varidana  was  then  taken  to  the  Medical   College Hospital.   Police Inspector Dhamankar who was also attached to  Kotwali  Polioe  Station  and  was  on  patrolling  duty received  a  wireless  message   regarding  Vandana   having received  burn injuries at about 4,00 p.m.  He first went to the place of the incident but on coming to know that Vandana was  taken  to the Medical College Hospital he went  to  the hospital.  As her condition was serious and as the Doctor in charge  certified  that  she  was  fit  enough’  to  make  a statement  he recorded her statement (Ex.23) in the presence of  two  panch witnesses, PW-1 Ambar and Janardan  Vithobaji Bhanarkar.   It  was  recorded  at   about  5  p.m.   Police Inspector  Dhamankar was .not then aware of the fact that an offence was already registered at the Police Station.

     The  evidence of Mashirkar and Dhamankar has  remained unshaken  and  it clearly establishes that Vandana was in  a fit  condition to make these statements.  There is no reason to doubt that whatever she had stated was taken down by them correctly.

     PW-1  Ambar  was a neighbour of the accused.   He  has deposed that on the date of the incident about 2.00 p.m.  he heard  shouts coming from the hut of the accused, tie rushed to  that  place  and saw Vandana lying near their hut  in  a burnt  condition.  She had told him that it was the accused. who had set her ablaze.  He has also deposed about his going

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with  Vandana to the Hospital.  There in his presence Police Inspector Dhamankar had recorded her

     statement  and he had also put his signature  thereon. He categorically stated that.  Vandana was conscious and was in  a  position  to make the  statement.   Dr.   Deshpande’s evidence  supports him on this point.  Only suggestion  made to  this  witnesswas  that  he nad not really  gone  to  the hospital  and his signature was obtained on a blank piece of paper  at the Police Station.  This suggestion was denied by the  witness.   We  do not find any material  on  record  to create  any doubt regarding reliability of this witness, tie being  a  neighbour,  haa no reason to falsely  involve  the accused  or be a party to a wrong statement made by Vandana. The  trial  Court and the High Court after appreciating  his evidence  and that of the other two witnesses have found  it trustworthy.   We see no reason to differ from this  finding recorded  by  the Courts below.  In view of the evidence  of three  witnesses and the two dying declarations, it  clearly stands  established  that the appellant had poured  kerosene over  the body of Vandana and had set her ablaze because she had  protested when the appellant started beating their son. We  find  no substance in this appeal and it 1s  accordingly dismissed.