JUDGMENT :

J.M. KHAZI, J.

1. Being aggrieved by the judgment and order dated 10.10.2018 in S.C. No. 46/2014 on the file of Principal District and Sessions Judge, Bagalkot, by which she came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/- appellant, who is the sole accused, has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short).

2. For the sake of convenience, the appellant is referred to as accused.

3. Accused is the wife of the deceased. The deceased was suspecting the fidelity of his wife i.e. the accused is having an affair with other man and with this suspicion, he used to quarrel with the accused everyday and for this reason, he did not want the accused to go and work outside and he was a drunkard and also under the influence of alcohol he used to quarrel with the accused. It is the case of the prosecution that, in this background, the incident took place on 20.02.2014. On that day, deceased, accused and their son were the only inmates of the house and after finishing dinner, while the deceased slept on the cot, accused and their son slept on the floor of the house and at around 11.30 p.m. accused poured kerosene over the body of her husband i.e. deceased and set him on fire and while undergoing treatment, he died.

4. In support of the prosecution case, in all 22 witnesses are examined as PWs. 1 to 22, Exs.P1 to 26 and MOs.1 and 2 are marked. On behalf of the accused, portion of statement of PW-2 is marked as Ex.D1.

5. During the course of her statement under Section 313 of Cr.P.C. the accused denied the incriminating material put to her. She has not chosen to lead evidence on her behalf. On the other hand, she has filed a written statement..........After hearing the arguments of both sides, the learned Sessions Judge has come to the conclusion that based on the material placed on record, the prosecution has proved the allegations against the accused beyond reasonable doubt and it is sufficient to bring home the guilt to the accused and accordingly convicted and sentenced her.

6. Assailing the impugned judgment and order, the learned counsel representing the accused submits that the impugned order is opposed to law, facts and probabilities of the case and liable to be set aside. He submits that the Trial Court has failed to notice that the accused and her minor son i.e. PW-15 were sleeping outside the house and no witnesses have spoken that the accused was inside the house when the incident took place. He would further submit that, in his dying declaration at Ex.P-19, made before the Taluka Executive Magistrate, the deceased has stated that he does not know how he caught fire and he did not suspect anybody. The Police Constable, who recorded the information given by the deceased is not examined and as such the prosecution has failed to prove the allegations against the accused as made in the first dying declaration. He would further submit that, PW-11 Dr. Santosh S. Sheelvant, who conducted the postmortem examination, has stated that there was no kerosene smell in the dead body and therefore, the charge that the accused poured kerosene on the deceased and set him on fire is not proved. He further submitted that, as per the medical records, the deceased suffered 97% burn injuries and both his hands were burnt and therefore the question of deceased giving first information or dying declaration is to be ruled out. Moreover the first information is not certified by the doctor that the victim was in a fit state of mind to give the statement. Therefore, the Court ought to have disbelieved the dying declaration.

7. The learned counsel further submitted that, the Trial Court has failed to notice that there is a possibility of deceased setting himself on fire as there are no signs of presence of kerosene on his body and it has come in the evidence of PW