JUDGMENT :

VIBHA KANKANWADI, J.

1. Present appeal has been filed by the original accused challenging his conviction in Sessions Case No.220/2012 dated 10.02.2016 by learned Additional Sessions Judge, Jalgaon after holding him guilty for the offence punishable under Section 302 of the Indian Penal Code, 1860. The appellant has been sentenced to suffer imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand only), in default to suffer rigorous imprisonment for six months. He was not on bail throughout the trial and, therefore, set off under Section 428 of the Code of Criminal Procedure has been granted.

2. The prosecution story, in short, is that – deceased Vithabai Bajirao Patil is the mother of PW 2 Anita Sanjay Adhav and grandmother of PW 1 Vaishnavi Sanjay Adhav. Vithabai and Anita were residing adjacent to each other. The accused was also residing adjacent to them. Vithabai was admitted in Bapji Rural Hospital, Chalisgaon on 08.09.2012 after she sustained burn injuries. MLC was given to Chalisgaon Police Station and, therefore, PW 10 then Police Sub Inspector Mr. Suresh Deshmukh went to the hospital and recorded her statement as per her say. On the basis of the said statement, offence vide Crime No.294/2012 was registered for the offence punishable under Section 307 of the Indian Penal Code. Panchnama of the spot was executed and articles were seized. Vithabai was then shifted to Civil Hospital, Dhule for further treatment. Statements of witnesses were recorded. Vithabai expired on 10.11.2012 and, therefore, Section 302 of the Indian Penal Code came to be added. In the meantime accused was arrested. After death of Vithabai inquest panchnama was prepared and dead body was sent for postmortem. Postmortem Reports were collected. After the completion of investigation charge sheet was filed.

3. After the committal of the case, charge was framed and trial was conducted. The prosecution has examined in all 10 witnesses to bring home the guilt of the accused, whereas the accused has examined two witnesses in defence. After considering the evidence on record and hearing both sides the learned trial Judge has convicted the accused, as aforesaid. Hence, the present appeal.

4. It is to be noted that the accused had sought for legal aid and, therefore, the legal aid was given vide letter dated 07.06.2016 issued by High Court Legal Services Sub Committee, Aurangabad. Further, the fact is that the concerned Panel Advocate was elevated to this Bench and, therefore, once again by communication dated 13.03.2020 another Panel Advocate came to be appointed to represent the appellant. It appears that said Panel Advocate remained absent and, therefore, by order dated 20.10.2020 the earlier Bench had appointed Advocate Mr. A.B. Girase to represent the appellant. We have heard learned Advocate Mr. A.B. Girase for the appellant and learned APP Mrs. V.S. Choudhari for the respondent and perused the record.

5. It has been vehemently submitted on behalf of the appellant that the case of the prosecution is resting on the two dying declarations and testimony of two alleged eye witnesses PW 1 Vaishnavi and PW 2 Anita. The two dying declarations are – Exh.69 recorded first in time by PW 10 PSI Mr. Suresh Deshmukh – Investigating Officer and the second dying declaration is by PW 3 Somnath Bagul Exh.41. Though it appears from the record that there was one more dying declaration recorded by one Khairnar, but said Khairnar has not been examined by the prosecution, therefore, we cannot consider the same. If we consider the testimony of PW 10 PSI Suresh, it can be seen that he had gone to Bapji Rural Hospital, Chalisgaon after receipt of MLC Exh.46 on 08.09.2012. In his cross-examination he has stated that he had gone to hospital around 8.00 a.m., stopped there for about ½ to 1 hour and at that time the medical treatment was going on to Vithabai and then he has recorded the said dying declaration Exh.69. However, he has not stated that whether he had g