V.M. Deshpande, J.

1. The appellant, who stands convicted for the offence punishable U/Section 302 of the Indian Penal Code, 1860 (In short, the I.P.Code) and was sentenced to suffer imprisonment for life and to pay fine of Rs.500/- and in default of payment of fine, to suffer simple imprisonment for three months by the learned Additional Sessions Judge, Parbhani on 4th August, 2011 in Sessions Case No.69 Of 2010, by this Criminal Appeal questioning the correctness of same conviction and sentence.

2. The prosecution case can conveniently be stated as under :-

(i) The appellant is the husband of Rukhsana. Both use to reside in “Pathanmohalla”, Pathari, Dist. Parbhani. In-laws of Rukhsana were also residing at Pathari and also her parents house is at Pathari. Even prior to the marriage, both were related to each other.

(ii) The occurrence in question arose in between the night of 30th January, 2010 and 31st January, 2010.

(iii) ShaikhYousuf Shaikh Kathu (P.W.No. 4) is the uncle of deceased Rukhsana. P.W.No. 5 Shamina Sk.Salim is her mother. P.W.No. 7 Shaikh Khalil Shaikh Jamil is residing just in front of the house of the appellant. P.W.No. 8 Sanjay Eknathrao Suryawanshi is also residing in front of the house of the appellant.

(iv) When Shaikh Yousuf Shaikh Kathu (P.W.No. 4) was present at his residence, at the relevant time, his wife awaken him. He found the appellant at his residence in a frightened condition. The appellant requested him that he should accompany him at his residence. The appellant told him that, there was quarrel between him and his wife. Immediately, this witness reached to the residence of the appellant; where he found Rukhsana, wife of the appellant completely in a burnt condition and was lying in front of the kitchen table, in a kitchen room.

(v) It is the case of the prosecution that, that time, Rukhsana made oral dying declaration to P.W.No. 4 Shaikh Yousuf Shaikh Kathu to the effect that, it is the appellant, who poured kerosene on her person and set her on fire.

(vi) Thereafter, he called his wife and asked her to put the clothes on the person of Rukhsana. Thereafter, he called his brother and his wife, who are the parents of Rukhsana. He also made telephonic call to Aarif Khan, Member of Municipal Council and requested him to make an arrangement for ambulance. On turn, Aarif gave telephonic call to one Shaharukh, driver of the Ambulance. Thereafter, he made call to one Shah and asked him to make arrangement of ambulance. Shaikh Yousuf Shaikh Kathu (P.W.No. 4) made telephonic call to Shahrukh (P.W.No.3), he came there with the ambulance. Initially, Rukhsana was taken to the Rural Hospital, Pathari however, Doctor was not available there and only compounder was present there. Therefore, they took her to the Civil Hospital, Parbhani. She was admitted in the Civil Hospital, Parbhani.

(vii) Rukhsanawas admitted in Civil Hospital, Parbhani on 31st January, 2010 at 2.35 a.m. as indoor patient. Medical Officer on duty, on admission of Rukhsana in the hospital has given M.L.C. report. Therefore, Police Head Constable

– Anand Dhondopant Kurundkar with a desire to record the statement of said lady, went to the hospital and approached to the Medical Officer Dr. Mete. Dr. Mete examined her and found that, she was not in a position to give her statement. Thereafter, P.H.C. Kurundkar issued a letter to Taluka Magistrate for recording the statement of said patient. In the meantime, P.H.C. Anand Kurundkar received an information that patient has regained consciousness thereafter, he went to Dr. Bhalerao, who was on duty at the relevant time. He went to the patient at 2.00 p.m. After examination by the Doctor, PHC-Anand Kurundkar recorded her statement. Said statement is at Exh.No. 47.

(viii) NaibTahasildar - Prakash Vishwanathrao Ashtikar (P.W.No. 16) at the relevant time received a letter requesting him to record the statement of Rukhsana. Accordingly, he went there and recorded the dying declaration of Rukhs