A.H. Joshi, J.

1. Appellant herein was charged in Sessions Case No. 3 of 2004 by 4th Ad hoc Additional Sessions Judge, Dhule, for pouring kerosene on his wife Sangita, setting her fire on 10.10.2003, at 4.15 p.m. and murdering her under section 302 of the Indian Penal Code.

CASE OF PROSECUTION :

2. The story as was put forward by prosecution :

On 10.10.2003 victim Sangita and accused Manik were present in their house. Accused had arrived at his house in a drunken state. Over some quarrel the accused got enraged due to the expression of the wife Sangita. He poured kerosene on her person and ignited her by a match stick. Sangita shouted. The accused poured water on her and extinguished the fire. Due to shouts of Sangita neighbours came up. One woman amongst the neighbours called Sangita's mother who arrived soon. One woman and Sangita's mother took Sangita to hospital. Sangita was admitted, examined and was treated by the Dr. Rahul Hatorkar the Medical Officer. Sangita gave oral dying declaration to her brother Nitin Patil. Police Officer and Executive Magistrate have recorded dying declarations. Sangita succumbed to those injuries. Medical Officer Dr. Mr Rahul Hatorkar had opined that Sangita was fit to make the dying declaration.

Accused had also suffered burn injuries, he was admitted in the hospital on 10.10.2003 and was discharged on 19.10.2003. He was arrested after discharge from hospital.

3. Accused pleaded not guilty and claimed to be tried. AS TO THE EVIDENCE TENDERED BY THE PROSECUTION :

4. Prosecution has examined in all eight witnesses as follows :-

(a) For dying declarations : -P. W.6 Rajesh Bhagwat Assistant Sub Inspector -P. W.1 Suresh Koli Executive Magistrate

(b) Medical witnesses : -P. W.3 Dr. Rahul Hatorkar to prove the admission of Sangita in the hospital in Burn Ward, treatment, and her fitness to give dying declaration -P. W.2 Dr. Ajit Patil-to prove post mortem examination, the extent of burn injuries and cause of death.

(c) For oral dying declarations : -P. W.7 Nitin Patil

(d) Panch witnesses : -P. W.4 Prabhakar Wagh, -P. W.5 Kamlabai Navgire for spot panchnama and inquest panchnama, respectively.

(e) Investigating Officer : -P. W.8 -Ukhardu Dhobi, P.I.

5. The trial has ended in conviction towards the charge for murder and the sentence for life imprisonment, etc.

6. Spot panchnama and inquest panchnama are not amongst the disputed facts.

7. P.W.3 Dr. Rahul Hatorkar has proved the medical case papers Exh.29 showing that Sangita's mother had admitted her to the hospital, she was kept in Burn Ward. P.W.3 Dr. Hatorkar has recorded the background of the case. Relevant portion reads as follows :-

"....H/o uo&;k'kh HkkaM.k >kY;kus uo&;kus vaxkoj jkWdsy vksrwu dkMh ykoyh o tGkys at about 3 pm today."

(quoted from paper-book page no.66)

8. It is seen that dying declaration, recorded as such which is first in point of time was recorded by P.W.6 Assistant Sub Inspector Rajesh Bhagwat. He had arrived at the spot some time at 5.45 p.m. Medical Officer P.W.3 Dr. Rahul has certified that Sangita was conscious, fully composed, well oriented and in fit mental condition to give the statement. This dying declaration is Exh.40.

9. The version contained in the dying declaration Exh.40 when translated, would mean as follows :-

(a) On 10.10.2003 Manik her husband arrived in the house at 16.15 hours. He was already drunk.

(b) Sangita told the accused that people had arrived at the house to demand the repayment of loans taken by him and he should pay the loan immediately.

(c) Getting angry with the talk, accused told her that she should engage herself in business (DHANDA KAR) and make the payment and abused Sangita with filthy language. He opened the Can containing kerosene, poured it on her person and ignited with a match stick.

(d) Her clothes caught fire. The fire became unbearable. She started shouting.

(e) Neighbours arrived, saw her position.

(f) Seeing that Sangita had caught fire, the accused Manik Gawali took her