Judgment

P.P. NAOLEKAR, J.-

The accused-appellant was convicted by the Sessions Court under Section 302 IPC to undergo imprisonment for life and to pay a fine of Rs 1000 and in default to undergo RI for a period of three months. He was further found guilty of charge under Section 449 IPC and sentenced to undergo imprisonment for ten years and to pay a fine of Rs 1000, in default to undergo RI for a period of three months. The sentence imposed on the appellant was confirmed by the High Court. Aggrieved by the said order of conviction, the present appeal is preferred by the accused appellant.

2. The relevant facts from the evidence of the prosecution are that Pushpa (the deceased), her brother Selvaraj (PW 3) and Radha (PW 2 wife of PW 3), were residing at Bagalur in a rented house. On 15-1-1998 at about 5.00 p.m., when PW 2 was returning from sandal (market), she heard hue and cry from her house and when she rushed towards the house, she saw the accused I Ravikumar alias Kutti Ravi running away from her residence. She saw that the deceased came out of their house in flames. She raised alarm and several neighbours came to the spot and put off the fire with the help of a blanket. The deceased narrated the incident to PW 2 that the accused along with his girlfriend Mala alias Mallesi committed house trespass with the intention to outrage the modesty of the deceased and since she resisted, the accused- (appellant at the instigation of Mala poured kerosene over her and set her on fire. The deceased thereafter was taken to the government hospital at Hosur. PW 9 Dr. Jayraman Raju, the resident doctor admitted her at 5.45 p.m. PW 9 gave intimation to the police and immediately thereafter the Head Constable Govindraj (since deceased) came to the hospital and recorded the statement of the deceased (Ext. P-9). The doctor gave a certificate that the deceased was conscious at that time and that he had translated her version given in Telugu to Tamil so as to enable the constable to record the statement. The statement was received at the police station and a case was registered under Section 376 read with Sections 511 and 307 IPC: PW 9 the doctor intimated to the Judicial Magistrate, PW 8 (Thiru Muthuraj) of the incident who in turn came to the hospital and recorded the dying declaration (Ext. P-4) of the f deceased at 6.35 p.m. on the date of occurrence. PW 9 (the doctor) translated the dying declaration given by the deceased in Telugu to Tamil and also certified that at the time of giving the dying declaration she was conscious and in a fit state of mind to give the dying declaration. Later on Pushpa succumbed to her injuries and died on 21-1-1998 at 4.30 p.m. in the government hospital, Hosur. PW 10 (R. Naresh) conducted the autopsy on to the body and issued the post-mortem certificate. The following injuries were found on the deceased: External injuries "Grade 4 dermo-epidermal burns extending as shown in figure, in front of chest and abdomen burns up to muscle-deep, deep bums. Pus formation on both axilla and in thigh region present."

3. The doctor opined that Pushpa died due to septicaemia. He had opined that on account of 90% burn injuries suffered by the injured, septicaemia would have been caused amid the ordinary course of events, which could have caused her death.

4. The case of the prosecution is primarily based upon the dying declaration of the deceased, which found corroboration by the statement of PW 2.

5. Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as