JUDGMENT :

(Abhay S. Waghwase, J.) :

1. By invoking section 374 of the Code of Criminal Procedure (Cr.P.C.), original accused – appellant is questioning the Judgment and order dated 22.07.2014 passed by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No. 33 of 2013, by which appellant is convicted for offence under section 302 of Indian Penal Code (IPC).

2. The facts giving rise to the case are as under :-

Deceased Parveen was married to accused six months prior to the incident. According to prosecution, accused was involved in scrap business and was in the habit of consuming liquor. After consuming liquor, he used to beat Parveen raising suspicion about her character. He also demanded Rs.20,000/- and on such count there was cruelty and harassment to Parveen. On 27.10.2012, in above backdrop, accused-appellant poured kerosene on her person and incinerated her. In the said episode, Parveen suffered more than 91% burn and was therefore shifted to hospital, where PW-3 Gorakshanath – a Special Judicial Magistrate visited the hospital and after seeking opinion of Doctor about fitness of patient, he recorded dying declaration at Exhibit-29. On the strength of which, crime bearing No.349 of 2012 was registered.

3. PW-9 Indrabhan who was posted at Pathardi Police Station was entrusted with the investigation, during which he gathered dying declaration (Exh.29) and other papers, visited the spot and drew its panchanama. On the spot, he also seized match-box, bottle of kerosene and clothes of lady. Seizure was deposited in Malkhana by drawing receipt. He gathered hospital papers and after death of Parveen, her body was sent for autopsy. Post-mortem report was collected, seizure was sent to analysis and after completing the investigation, charge-sheet came to be filed.

4. After recording statement of accused under section 313 of Cr.P.C., learned trial judge heard both sides and on evaluating the oral and documentary evidence, reached to the finding that prosecution has succeeded in establishing charge under section 302 of IPC. However, learned trial Judge further held that the prosecution failed to bring home charge against the accused for commission of offence under Sections 498-A, 323, 504 and 506 of IPC and thereby acquitted them for the same.

Therefore, feeling aggrieved by the order of conviction under section 302 of IPC, appellant – accused has now approached this Court by filing instant appeal.

5. In view of the Judgment of Hon'ble Apex Court in the case of Ishvarbhai Fujibhai Patni Vs. State of Gujarat; (1995) 1 SCC (Cri.) 222, this Court by entertaining the appeal under section 374, being first appellate court, is required to re-evaluate, reanalyze and re-appreciate the evidence on record and therefore, we proceed to do so.

6. Prosecution has relied on following witnesses:-

PW-1 Dr. Ashok is the autopsy Doctor who conducted postmortem and issued PM Report (Exhibit-24). PW-2 Satish is the spot panch, who identified panchanama (Exhibit-26) and the articles seized in his presence. PW-3 Gorakshanath is the Special Judicial Magistrate, who recorded dying declaration of deceased Parveen (Exhibit-29). PW-4 Dr. Surekha Gaulkar is the Doctor, who certified the fitness of deceased Parveen for statement. PW-5 Abdul Karim Ibrahim Raje is the ASI of Topkhana Police Station, who issued communication addressed to Doctor to examine and issued certificate. PW-6 Halima Shaikh is the mother of deceased, PW-7 Mukhtar is the brother-in-law and PW-8 is the sister of deceased. PW-9 Indrabhan is the Investigation Officer.

SUBMISSIONS

On behalf of Appellant that :

7. Learned counsel for appellant would point out that there is no eye witness in this case. Case of prosecution is based on dying declaration. However, according to him, the said dying declaration (Exhibit-29) does not inspire confidence. Taking us through the dying declaration, it is pointed out that dying declaration is cryptic and ambiguous. According to him, what triggered the inciden