JUDGMENT :

[Vibha Kankanwadi, J.] :

1. Present Appeal has been filed by the original accused persons challenging their conviction by the learned Additional Sessions Judge, Gangakhed, District-Parbhani on 7th September 2015 in Sessions Trial No.24 of 2012, by holding them guilty of committing offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Appellants – accused have been sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- (Rupees One Thousand) each, in default to suffer rigorous imprisonment for six months each.

2. The prosecution case is that deceased Sheelabai was married to one Nagorao Rajbhoj about a month prior to 16th May 2011. Appellant No.1 is her brother-in-law and appellant No.2 is her mother-in-law. The offence came to be registered on the basis of dying declaration given by deceased Sheelabai and it was recorded by Police Head Constable Shaikh, attached to Civil Hospital Police Chowki from Wajirabad Police Station, Nanded. Sheelabai was admitted around 4.30 p.m. on 16th May 2011 with 98% superficial to deep burns. It is the prosecution story that after her admission when Medico Legal Case was intimated to the Police Outpost situated at hospital itself; Police Head Constable Shaikh went to the burn ward, sought opinion from the doctor who was treating Sheelabai and after it was found that she was in a fit state to give statement, had recorded her dying declaration. In her dying declaration Sheelabai had told that after her marriage she resided for about fifteen days at Bhogaon, Taluka-Palam, District-Parbhani and at that time there was quarrel between Sheelabai and her brother-in-law Pandurang i.e. appellant No.1. According to her, appellant No.1 had told her as well as her husband Nagorao that they should reside separately and then she says that she was assaulted by appellant No.1 and then her husband Nagorao had separated them. At that time, appellant No.2 had also insisted that Sheelabai and her husband should reside separately. Sheelabai states that since then both the appellants used to pick up quarrel with her and used to abuse. Her husband Nagorao as well as her father Narayan Chokhaji Kapure had gone for lunch (Bhandara) of Lord Maruti on 16th May 2011. Sheelabai was alone at home and at that time both the appellants suddenly poured kerosene on her person and set her on fire. She raised voice and thereafter, she was brought to Government Hospital, Nanded in a Jeep.

3. After such dying declaration was taken, offence on the basis of same was registered vide Crime No.34 of 2011 on 17th May 2011. However, it appears that by that time i.e. registration of the crime, Sheelabai had expired and therefore, the registration of the crime is under Section 498-A, 307, 302, 504 of the Indian Penal Code and investigation was undertaken.

4. During the course of investigation, panchnama of the spot, inquest panchnama were prepared. The dead body was sent for postmortem. Statements of the witnesses were recorded. Certain articles those were seized at the time of spot panchnama, were sent for chemical analysis. Postmortem report was collected and after completion of the investigation, chargesheet was filed.

5. Accused persons were on bail. After securing their presence, learned Additional Sessions Judge has framed charge. When both the accused pleaded not guilty, trial has been conducted. The prosecution has examined in all 13 witnesses to bring home the guilt of the accused and after considering the evidence on record, learned Additional Sessions Judge held the appellants guilty of committing offence punishable under Section 302 of the Indian Penal Code, however, acquitted them from the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. The said conviction is under challenge in this Appeal.

6. Heard learned Advocate Mr. Gaikwad appearing for the appellants and learned APP Mr. Phule appearing for the respondent – State.

7. It has been vehemently