D. D. Sinha, J.

1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State.

2. The Criminal Appeal is directed against the Judgment and Order dated 9th December, 1997 passed by the 3rd Additional Sessions Judge, Kolhapur, whereby the appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life.

3. The prosecution case in nutshell is as follows:-

Deceased Shakuntala was wife of the appellant. At the relevant time the appellant and the deceased were residing along with their two minor sons. The marriage of deceased was solemnized with the appellant eight years prior to the incident. The appellant was habituated to alcohol and used to demand money from the deceased of and on for purchasing alcohol.

4. On 11th December, 1996 deceased Shakuntala prepared dinner and went to sleep at about 9 p.m. The appellant came to the house at about 11 p.m. There was a kerosene lamp which was burning in the house of the appellant at the relevant time. It is the case of the prosecution that the appellant woke up his wife Shakuntala and at that time was under the influence of alcohol. The appellant demanded money from the deceased to purchase alcohol. The deceased refused to pay money to the appellant. Because of the said refusal, the appellant got enraged and lifted the kerosene lamp, poured the kerosene from the said lamp in the bottle. The appellant thereafter poured the said kerosene oil on the person of the deceased and set her on fire with the help of the kerosene lamp which was burning in the house at the relevant time. Deceased shouted for help, appellant opened the door and ran away from the spot.

5. The neighbours of the appellant, Sadanand (P.W. 5), Arjun (P.W. 6) and some others reached the spot of incident, entered into the house of the appellant and tried to extinguish the fire by covering the body of the deceased by putting blanket on her person. These persons took Shakuntala to CPR Hospital, Kolhapur in jeep. Mr. Madhukar - The Special Executive Magistrate (P.W. 4) recorded the dying declaration of deceased on 12th December 1996. The Investigating Officer had drawn inquest panchnama, spot panchnama and recorded statement of witnesses. Shakuntala succumbed to the burn injuries. Post mortem examination was conducted by Dr. Anand Mahipati Kamat (P.W. 13). The Investigating Officer had also recorded statement of deceased on 12th December 1996 after obtaining certificate of the doctor that the deceased was conscious at the time of recording of the said statement, which is Exhibit

34. On completion of investigation, charge sheet was submitted before the Judicial Magistrate First Class. The case was committed to the Court of Sessions. Charge is framed against the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Defence of the appellant is of total denial.

6. The learned counsel for the appellant has submitted that the case of the prosecution is mainly based on the evidence of dying declaration which was not recorded in question and answer form by P.W. 4 Madhukar, the Special Executive Magistrate, which creates doubt about authenticity of the evidence of dying declaration. It is further contended that the deceased suffered more than 80% burns and therefore Dr. Pramod G. Patil (P.W. 12) in his cross-examination has admitted that in such condition normally pain relieving injection is given to the patient and patient gets giddiness and remains in the said condition for a period of 4 to 5 hours. It is contended that in the instant case the deceased suffered 80% burn injuries and therefore the pain relieving injection must have been given to her in the hospital and therefore it can safely be presumed that at the time of recording of a dying declaration she was not in a fit condition to give statement. It is contend