Point of Law: The act of the accused was not pre-meditated or designed and at the relevant time as it has come in the dying declaration that he was under the influence of alcohol and committed the said act.

JUDGMENT :

S.S. SHINDE, J.

1. The present appeal is preferred by the appellant (original accused) being aggrieved by the judgment and order dated 4th February, 2021, passed by Additional Sessions Judge, Nashik, thereby convicting him for the offences punishable under Section 302 and 498-A of the Indian Penal Code, 1860 (hereinafter for short ‘IPC’).

2. The case of the prosecution in nutshell can be summarized as under:

Shobha Chavan (deceased) was the wife of the appellant. After the marriage the accused used to doubt her character and assault her under the influence of alcohol. The accused mentally and physically harassed Shobha by suspecting her character and subjected her to cruelty by willful conduct. On 11.10.2016 at about 9.00 p.m. after coming home under the influence of alcohol, the accused noticed one drinking pot, which was kept near the devhara (place of worship in the house). After seeing the same, the accused asked his wife if any outsider had come. However, when Shobha (deceased) told the accused that the drinking pot was kept by the accused himself, the accused got annoyed and abused her. Thereafter, he poured kerosene on the person of Shobha and put her ablazed. Thereafter, after 4 to 5 days, while being treated in the hospital, Shobha (decreased) expired. In the meantime, on the report of the informant (the deceased), the offence was registered.

3. After registration of offence, investigation was carried out. Investigating Officer carried out spot panchnama (Exhibit-16), seized various articles from the spot of incident. Thereafter, on 13.10.2016, the investigating Officer arrested the accused by preparing arrest panchnama (Exhibit-51). Thereafter, she recorded the statement of witnesses and sent the seized muddemal to forensic lab along with covering letter (Exhibit-52). After completion of investigation, the investigating Officer has fled charge-sheet. The Judicial Magistrate First Class, Sinnar, committed the case to the Court of Sessions, since offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions. Charge was framed against the accused for the offence punishable under Section 302 of IPC and the accused pleaded not guilty. The accused took the defence that the false case has been fled against him.

4. In order to prove its case the prosecution has examined following witnesses-Kailas Uttam Gaikwad (PW-1), Madhavrao Kashinath Kokate (PW-2), Khandu Ganpat Jedgule (PW-3), Sitaram Sahadu Lokhare (PW-4), Dr. Sonali Ashok Gaidhani (PW-5), Nitin Ramnath Mandlik (PW-6), Nivrutti Bhavani Chavan (PW-7), Ashok Fakira Ahire (PW-8) and Dr. Nikhil Somnath Saindane (PW-9).

5. In addition to examination of aforesaid witnesses the prosecution has also relied on the various documents including spot panchnama (Exh.16), statement of informant (deceased) (Exh.20), statement dated 12.10.2016 of the deceased (Exh.34), inquest panchnama (Exh.41), memorandum of postmortem examination (Exh.44), muddemal pavti (Exh.50), arrest panchnama (Exh.51) and C.A. report (Exh.54).

6. After a full fledged trial, the trial Court convicted the accused for the offences punishable under Section 302 and 498-A of the IPC. Hence, this appeal.

7. Learned counsel appearing for the appellant has made following submissions:

(i) The dying declaration recorded by the Executive Magistrate is on a printed form and is in the form of a questionnaire. Also, the questions asked by the Magistrate to the deceased have been previously framed. There is difference in the time recorded by the medical Officer. The medical Officer has endorsed that Shobha (deceased) was ft to give a statement at 12.30 p.m. and another endorsement at 12.50 p.m. The total time calculated for recording the said dying declaration is 62 minutes. So, even if the doctor gave an endorsement at the beginning of the said dying declaration and another at the end, the time of the said endorsement of the doctor is not correct and proper. The dying declaration at Exhibit-20 a