(1.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/ , in default of which to undergo rigorous imprisonment for two months, by the Ad hoc Additional Sessions Judge, Akola, by judgment dated 29/4/2005, in Sessions Trial No. 176 of 2003, by this appeal questions the correctness of his conviction and sentence.
(2.) Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W. 9 P.S.I. Ingole, who was attached to police Station Civil Lines, Akola on 8/6/2003, was informed at 0.35 hours that Police Constable Sachin of Out post, Main Hospital, Akola had brought one dying declaration and occurrence report. P.W 9 P.S.I. Ingole accordingly registered offence vide Crime No.390/2003 under Section 307 of the Indian Penal Code and investigated the same. He accordingly arrested the accused on 8/6/2003 under arrest panchanama at Exh.33. He visited the scene of the offence and drew scene of offence panchanama at Exh.11. From the scene of offence, certain articles came to be seized. He accordingly visited the Main Hospital at Akola and contacted the Medical Officer and requested him to opine if injured Smt. Kanta Gaikwad was in a fit condition to give her statement. He had accordingly submitted a memo at Exh.30 B. Along with the Medical Officer, P.W. 9 P.S.I. Ingole visited the ward and the Medical Officer examined injured Kanta and certified that she was in a fit condition to give her statement. The certificate was issued by the Medical Officer on the memo at Exh.30 A. Statement of Kanta accordingly was recorded and her thumb impression was obtained. The statement of Kanta recorded by P.S.I. Ingole is at Exh.31 B. P.W. 11 P.S.I. Budhwant who was attached to Civil Lines Police Station, Akola was entrusted with further investigation of Crime No.390/03, recorded the statement of witnesses. He forwarded seized articles to the Chemical Analyzer along with requisition at Exh.39. On completion of the investigation, charge sheet against the appellant was submitted. It also appears that P.W. 6 Ramesh Chandanbatwe, Executive Magistrate was served with a memo from City Kotwali Police Station for recording the dying declaration of Kanta. The memo is at Exh. 26. Upon receipt of the memo, he contacted P.W. 7 Dr. Shekhar Khonde and requested him to certify whether Kanta was in a fit condition to give her statement. Accordingly, the statement of Kanta came to be recorded at Exh.27 B. Since ointment had been applied to her thumbs, the toe impression came to be obtained.
(3.) P.W. 1 Sheela Tayde, a neighbour, P.W. 2 Sukhdeo Sarkate, brother of Kanta, P.W. 3 Laxmi Khandare, a neighbour and P.W. 4 Shewantabai Sarkate, mother of deceased Kanta did not support the prosecution and were declared hostile. The prosecution, therefore, rests principally upon the evidence of two dying declarations recorded by P.W. 6 Ramesh Chandanbatwe and P.W. 9 P.S.I. Ingole.