Manish Pitale JUDGMENT
Manish Pitale, J.
1. By this appeal, the appellant has challenged judgment and order dated 24/02/2010 passed by the Court of Sessions Judge, Akola (trial court) in Sessions Trial No. 2 of 2009, whereby she has been convicted under section 304 Part I of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2000/-, The co-accused (husband of the appellant) was acquitted by the trial court.
2. The prosecution case in brief was that Anita (the deceased) was divorced from her husband and that she and her son were living in the house of her parents in Murtizapur. The said Anita had developed relationship with Kailash Gunjal (husband of appellant and co-accused). It was alleged that the said Kailash Gunjal treated the said Anita as a second wife and he used to frequently visit her in the house of her parents. According to the prosecution, on 05/09/2008, in the evening, the appellant and her husband i.e. Kailash Gunjal came to the house where the said Anita was living. After a quarrel, they poured kerosene on her and the appellant threw a burning matchstick on Anita causing 90% burn injuries to her.
3. After the incident, the appellant ran away from the place while her husband, co-accused Kailash Gunjal, took the said Anita to the hospital. A memo was sent from police station to Bhaskar Bhagwat (PW1) the Executive Magistrate for recording dying declaration of the said Anita. Pursuant to the same, PW 1 went to the hospital and recorded the dying declaration of Anita. Before doing so, he contacted Dr. Sanjay Pawar (PW 8) to ascertain whether the said Anita was in a fit condition to give the dying declaration. The doctor PW 8 gave the endorsement stating that the patient was able to give dying declaration, upon which the Executive Magistrate (PW1) recorded the dying declaration (Exhibit 18) of Anita.
4. Thereafter, on 07/09/2008, the investigating officer Deepak Gawande (PW 9) recorded another dying declaration of Anita. He took endorsement regarding fitness of Anita to give the said dying declaration from Dr. Vijay Wadekar (PW7) who endorsed that the patient was conscious and oriented during and after the statement. The said second dying declaration was marked as Exhibit 43.
5. The investigating officer (PW 9) then recorded statements of other prosecution witnesses and submitted charge sheet against the appellant and her husband for having committed offences under Section 302 read with 34 of the IPC. The prosecution examined 9 witnesses in support of its case. PW 1 was Executive Magistrate, PW 2 was brother-in-law of deceased who turned hostile, PW 3 was the mother of the deceased, PW 4 was panch witness for inquest Panchnama, PW 5 was the doctor who conducted post-mortem, PW 6 was the panch witness for spot and seizure panchnamas, PW 7 was the doctor who gave fitness certificate for the second dying declaration, PW 8 was the doctor who gave fitness certificate for the first dying declaration and PW 9 was the investigating officer. The accused examined 3 witnesses in support of their defence. DW1 was the doctor on duty when the said Anita was admitted, DW2 and DW3 were neighbours of the said Anita.
6. On the basis of the evidence and material placed on record by the prosecution, the trial court found that there was no eyewitness to the incident because the father of the deceased was not examined and the mother of the deceased (PW 3) stated in her evidence that when she came back to the house she saw that her daughter (deceased Anita) was burning. The trial court found that the two dying declarations given by deceased Anita inspired confidence. It was found that there was endorsement by the doctors about the fi........