(P.D. Kode, J.)

1. The appeal and the application preferred therein by the appellants under Sections 311 and/or 391 of the Code of Criminal Procedure are disposed by this common judgment. By present appeal, appellants/accused have thrown challenge to judgment and order dated 19th March, 2004 convicting them for commission of offence punishable under Section 302 read with 34 of Indian Penal Code and sentencing each of them to undergo imprisonment for life and pay a fine of Rs.1000/- (Rs. One thousand only) and in default to undergo R.I. for two years, passed by learned Additional Sessions Judge, Amravati, in Sessions Trial No.83 of 1997 of the said Court.

2. The said session case had arisen out of the charge sheet submitted by Nandgaon Peth Police Station against the appellants for commission of such offence as a result of investigation of FIR No. 16/1997 initially registered with the said police station for commission of offence punishable under Section 307 read with Section 34 of I.P.C. by PW3 API Baburao Tayde after receipt of dying declaration Exh.72 of victim Sahebrao Bhimrao Aware recorded by PW2 Prakash Dabhade, Special Judicial Magistrate at Irwin Hospital, Amravati on 2.2.1997.

3. It is the prosecution case that PW2 had been to said hospital after receiving letter of requisition from the Police for recording dying declaration of the said patient. PW2 had issued requisition letter Exh.71 to the Medical Officer, Ward No.4 at said hospital for examining the patient Sahebrao Bhimrao Aware resident of Nandgaon and having sustained 63 % burn injuries and certifying whether said Sahebrao was in fit condition to give a statement. PW4 Dr. Deshmukh on duty after examining Sahebrao at about 10.45 p.m. had given certificate Exh.86 upon the requisition letter to the effect “certified that patient is conscious, oriented well time and date and patient is fit for D/D”.

4. It is further prosecution case that thereafter PW2, after persons surrounding the patient had withdrawn them as asked by him, had recorded dying declaration Exh.71 of Sahebrao in presence of PW4 Dr. Deshmukh in question and answer form in his own handwriting. PW2 had signed the same and taken thumb impression of the patient thereon. He had read over the same to the patient and patient had admitted the same to be correct and PW2 had made endorsement to such effect below the dying declaration recorded and so also PW4 Medical Officer after examining the patient had certified that patient was conscious and oriented.

5. It is prosecution case that during the said dying declaration, said Sahebrao had given his residence as Takli Jahangir and occupation as cultivation. To the main question asked as to what had happened, he had narrated that Ashok Bhute – appellant no.2, Pandurang Dhangar - appellant no.3, had caught hold of him and wife of Janrao Bhute i.e. appellant no.4 had brought kerosene can from the house and Janrao Bhuteappellant no.1 had poured kerosene from said can on his entire person from head and after taking a match-stick from Pandurang -appellant no.3 , had ignited it and set him on fire. As a result thereof, he had sustained burn injuries on entire person from mouth and to vital part. With regard to the reason for the incident, Sahebrao narrated that from the lane appellant no.3 had called him to the narrow lane of house of Ashok (appellant no.2). Appellant no.1 told him “why did he lodge report in the Police Station against his brother Ashok (appellant no.2)”, thereon Sahebrao had told him since appellant no.1 had lodged report, he had also lodged report. At that time, appellant no.1 told Sahebrao “Foknicha Tu Majla”. Appellant no.1 had asked his wife to bring kerosene container. At that time, Sahebrao had tried to free himself from his clutches but he had caught Sahebrao firmly. Firstly appellant no.1 had beaten him. Then appellant no.1 along with said other persons had set him on fire. With regard as to where and when incident had occurred,