JUDGMENT - GAIKWAD P.B., J.:---The appellant dissatisfied with the judgment and order convicting him under section 304-II of Indian Penal Code (IPC) and directing him to suffer rigorous imprisonment for five years and to pay fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months passed by the learned Additional Sessions Judge, Osmanabad on 15-6-2003 in Sessions Case No. 123 of 2002, has filed the present appeal.

2. The facts in the nut shell are that;

The appellant is the resident of village Jagji taluka and district Osmanabad. However, since two years prior to the incident he was residing at Pune and working as Painter. Deceased Rajkanya was having illicit intimacy with the appellant for last two years and it is alleged that it was decided by them to perform the marriage. Parents of Rajkanya had no objection therefor but the parents of appellant were opposed to it.

A day prior to the occurrence it is alleged that appellant had gone to Latur with Rajkanya for purchases.

On 26-2-2002, at about 6 p.m. Rajkanya was at her parents house situated infront of the house of appellants parents. She was alone in the house. Her parents and brother had gone to field. Appellant insisted her to accompany him to Pune but Rajkanya refused to accede his request saying that he should first marry with her and thereafter take her to any where. It is further alleged that some exchange of words took place. Appellant got annoyed due to refusal of Rajkanya to accompany him. He poured kerosene on her person and set her ablaze. She sustained burn injuries. The appellant tried to extinguish the fire and in that attempt he also sustained injuries. The incident was informed to parents of Rajkanya. Rajkanya was immediately taken to Murud Hospital and thereafter, as per the advise of doctor she was shifted to Civil Hospital, Osmanabad. Equally, the appellant was also taken to Primary Health Centre, Murud and thereafter shifted to Civil Hospital, Osmanabad.

It is further seen from the record that when Rajkanya was admitted in the Civil Hospital, Osmanabad. Dr. Munde who was on duty, informed the Head Constable, on duty at Police Out Post at Civil Hospital. P.W. 1 Kazi Police Head Constable accordingly visited victim Rajkanya, ascertained her condition through Dr. Munde and on certification by Dr. Munde that she is in a position to give statement, he recorded statement of victim. Rajkanya disclosed in the said statement that appellant set her on fire by pouring kerosene on her person because she refused to accompany him to Pune. Said statement itself was treated as first information report. Accordingly, Crime No. 0 of 2002 was registered at Police Station, Osmanabad and as the offence was taken place within the jurisdiction of Police Station Dhoki, the complaint was transferred to the said Police Station.

3. On the next day, Special Judicial Magistrate was requisitioned by the police authorities, who recorded the statement of Rajkanya, in which she has again narrated the incident and the manner in which it took place. During the course of investigation statements of certain witnesses were recorded. Rajkanya, ultimately, succumbed to the burn injuries on 2-3-2002. The police, accordingly, added section 302 of I.P.C. Inquest was held and the dead body was referred for post-mortem. The Medical Officer performed post mortem and given cause of death of Rajkanya as death due to burn injuries to the extent of 70%.

4. Police Sub-Inspector, Police Station Dhoki, after completing the investigation submitted charge-sheet against the appellant and his brother for the offences under sections 302 read with 34 of I.P.C. During the course of investigation, it was revealed that there are allegation against the brother of the appellant and therefore, he came to be arrayed as accused.

5. The learned Judicial Magistrate, F.C., committed the case to the Court of Sessions as the offence under section 302 of I.P.C. was exclusively triable by the Court of Sessions

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