JUDGMENT - VISHNU SAHAI, J. :---The appellant aggrieved by the judgment and order dated 23-6-1993 passed by the Sessions Judge, Pune, in Sessions Case No. 489 of 1992, convicting and sentencing him to undergo imprisonment for life under section 302 IPC. has come up in appeal before us.

Along with the appellant his nephew Ramesh Mohan Bhalshankar was also tried and prosecuted under section 302 read with 34 I.P.C., but he has been acquitted vide the impugned judgment. The State of Maharashtra has not preferred any appeal challenging his acquittal.

2. The prosecution case in brief is that the appellant is the real uncle (father's brother) of acquitted accused Ramesh Mohan Bhalshankar. The deceased Bhamabai was the wife of acquitted accused Ramesh. About 1½ months prior to the incident a quarrel took place between acquitted accused Ramesh and the appellant. During the course of the same the latter assaulted the former with an iron bar resulting in the leg of the former getting fractured. It appears that since the parties were close relations the matter was not reported to the police but a compromise in terms, that the appellant would give the acquitted accused and the deceased food grains and money, was arrived at between the parties. It is said that once or twice the appellant gave food grains and some money to the acquitted accused but thereafter stopped.

On 27-6-1992 at about 7 p.m. the deceased Bhamabai went to the house of the appellant, who stayed in the neighbourhood, and asked him to give money and food grains. On that the appellant replied that he himself was not possessed of sufficient means and therefore could not provide them. Bhamabai's husband, Ramesh on learning this assaulted her and taunted her saying that because of her Narayan had broken his leg. As her husband had assaulted her, Bhamabai at about 9.30 p.m., the same day went to Narayan's house and told him that because of his refusal to provide money and foodgrains her husband had assaulted her.

It is further alleged by the prosecution that some times between 10 p.m. to 11 p.m. on 27-6-1992 the appellant came inside the house of the deceased Bhamabai and after pouring kerosene oil from a bottle on her person set her on fire with the help of a burning match-stick. On hearing her shouts her husband Ramesh tried to extinguish the fire. After the fire was extinguished Bhamabai's brother Gunyaba Sankat immediately took her to the Sassoon Hospital where she was admitted. In the hospital Bhamabai informed her brother that the appellant had poured kerosene oil on her and set her on fire.

Bhamabai was admitted at about mid-night, on the night of 27/28-6-1992, in the Sassoon Hospital, Pune. P.W. 2 Dr. Malviya, a resident medical officer, enquired from her the history of her burns and she informed him that she was burned by her father-in-law who poured kerosene oil on her head and ignited her with a match-stick.

At the time of recording the case-history Dr. Malviya found Bhamabai to be fully conscious and in a fit condition to give her statement. The case history was recorded by Dr. Malviya in the medical case papers at Exhibit 12.

On examining Bhamabai Dr. Malviya found that she had sustained 60% burns which were distributed between her chest, both upper limbs and lower part of face.

Sensing that the condition of Bhamabai was precarious Dr. Malviya informed the Medical Officer, the Superintendent and the police to make arrangement for recording her dying declaration. He had also given her all the necessary emergency drugs.

3. P.S.O. of Band Garden Police Station sent a letter to the Judicial Magistrate, First Class, Suresh Wadkar P.W. 4 which was received by the latter at 5.45 a.m. on 28-6-1992, requesting him to record the dying declaration of Bhamabai in Sasson Hospital, Pune. On receiving the aforesaid letter P.W. 4 Suresh Wadkar went to Sassoon Hospital, Pune where in Ward No. 27 he met Dr. Malviya who was on duty. Suresh Wadkar asked the police constable who accompa

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