Roshan Dalvi, J.

1. The appellant has challenged the judgment of the Second Ad-hoc Additional Sessions Judge, Pune, dated 4.12.2003 in Sessions Case No.84 of 2003, under which the appellant was convicted of the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- and in default of the payment of fine, to suffer rigorous imprisonment for six months.

2. The prosecution case is that the appellant committed murder of his wife by pouring kerosene on her person and setting her on flames in their matrimonial home on 25.7.2002 as he suspected her of having an affair with a neighbourhood boy, one Rajendra. This aspect has been shown by the prosecution in the dying declaration of the deceased Meera, which has been recorded by the police officer who was sent by the concerned Police Station upon being informed of the medico-legal case noticed by the hospital and which statement has been treated as her FIR, upon which the criminal case came to be registered against the appellant. His wife, Meera expired on 28.7.2002 in Sassoon Hospital, Pune.

3. The prosecution has examined seven witnesses. PW1 is the mother of the deceased. PW2 is the Doctor who examined the injured Meera in the hospital upon her admission and thereafter, when the police officer enquired about her condition, gave the endorsement relating to her medical condition on her dying declaration. PW3 is the Assistant Sub Inspector (ASI) who recorded the dying declaration of Meera and who has proved the execution of the dying declaration. PW4 is a neighbour of the accused who extinguished the fire in the house of the accused upon hearing the screams of Meera and who has partly turned hostile. PW5 is the spot punch, who has turned hostile. PW6 is the Investigating Officer, who visited the spot of the incident, recorded the statement of the mother of Meera as well as the neighbour, obtained the postmortem report and forwarded the articles seized at the spot to the Chemical Analyser. PW7 is the Doctor who performed the postmortem and who has proved the postmortem report prepared by him. The prosecution case is essentially required to be seen from the dying declaration of Meera. It would have to be seen whether the conviction recorded by the learned trial judge could have been correctly recorded.

4. PW1, her mother, essentially deposed about the oral dying declaration of Meera. PW2, the Doctor in YCM Hospital, to which Meera was initially shifted, has deposed about the fact that Meera was conscious and well oriented and in a position to give a valid statement. PW3 has deposed about how he recorded the dying declaration. PW4, the neighbour, who has otherwise turned hostile, has shown what he did upon hearing Meera’s cries. He has also deposed about Meera's inability to speak and the fact of she having become unconscious. PW5, the spot punch, who has turned hostile, has not been cross-examined. PW6 has shown the investigation carried out as also the state of the accused. PW7, the Doctor, who carried out the postmortem, has deposed about the cause of death and the extent of the burn injuries suffered by Meera.

5. The case of the accused is required to be considered at this juncture. It has been his case, as seen from his last answer in the statement under Section 313 of the Criminal Procedure Code, that Meera sustained burn injuries when the stove in the house burst and she accidentally caught fire. He has further stated that he has not set her on fire. Hence it is seen that whereas it is the prosecution case that Meera died of homicidal burns, it is the case of the appellant that she died an accidental death.

6. The evidence of PW1, the mother of Meera, shows that the appellant and Meera performed a love marriage without informing her and lived happily thereafter. They initially lived in the house of Sunita, the sister of the accused. For about one month prior to the incident, the