B.R. GAVAI, J.

The appellant takes exception to the judgment and order dated 10/11/2009 passed by the learned Ad hoc Additional Sessions Judge-4, Nagpur in Sessions Trial No. 266/2009, thereby convicting the appellant/accused for the offences punishable under Sections 302 and 498-A of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and for three months respectively.

2. The prosecution case, in brief, is that deceased Arti was in love with accused and as such, they married each other in the year 2001. Out of wedlock, they have begotten two children, namely, Gajal and Sujal. The accused used to ill-treat deceased Arti since he had suspicion regarding her illicit relations with other persons. The accused had suspicion that his younger son Sujal was not born to deceased Arti from him. Earlier to the incident in question, the accused had assaulted deceased Arti with a 'pechcus' on her right hand and caused injury. Accordingly, deceased Arti had also lodged a report to the Police Station.

3. It is the further case of the prosecution that due to ill-treatment to deceased Arti at the hands of the accused, she was residing along with her son Sujal in the house of her maternal uncle Bhojraj. Her elder son Gajal was snatched away by the accused and was kept with his mother. It is the further case of the prosecution that prior to 7-8 days of the incident in question, the accused had come to the house of uncle of deceased Arti and requested her to cohabit with him. He also assured her that he would not ill-treat her on the ground of suspicion on her character and also would not consume liquor. Accordingly, deceased Arti had gone to cohabit with the accused.

4. It is the further case of the prosecution that on 1/3/2009, the accused had abused deceased Arti as a prostitute. On the said day, at around 8.30 p.m. deceased Arti returned from her duty and cooked food. The accused in a drunken condition came at about 11 p.m. and took his younger son Sujal at Indora Zopada and kept him there. After doing that, he came home and started abusing and assaulting deceased Arti. At about 4-4:30 a.m., accused woke deceased Arti, removed blanket and asked her whether she wanted to cohabit with him or not. On this, deceased Arti told him that since he was harassing her, she was not ready to cohabit with him. When deceased Arti was asleep, accused poured kerosene on her person. On getting smell of kerosene, she woke up and saw the accused lightening the matchstick and setting her on fire and fleeing away. Her landlady and tenant came there and extinguished fire and took her to the Hospital.

5. On the basis of information given by deceased Arti, first information report came to be registered. During investigation, Investigation Officer recorded dying declaration of deceased Arti on 2/3/2009 so also her dying declaration was recorded by P.W.10 Trimbak Kamble, Special Judicial Magistrate on the same day. After completion of investigation, chargesheet came to be filed. After committal of the case to the Court of Sessions, charges were framed for the aforesaid offences. The accused pleaded not guilty and claimed to be tried. On conclusion of the trial, the learned trial Judge passed the judgment and order of conviction as aforesaid. Being aggrieved thereby, the appellant has preferred the present appeal.

6. Shri Daga, learned Counsel for the appellant, submits that the judgment and order passed by the learned trial Judge convicting the accused is not sustainable in law. It is submitted that there are inconsistencies in the two dying declarations recorded by P. W.3 Sham, Investigating Officer, which is at Exh.13 and P.W.10 Trimbak Kamble, Special Judicial Magistrate, which is at Exh. 32. It is contended that versions given in both the dying declarations are totally different. The learned Counsel relying on the judgment of the Division Bench of this Court in the Kamalbai Gorakh Koli and others vs. State of Maharashtra (2011 ALL MR