The main legal point established in the judgment is the application of Exception 4 to Section 300 of the IPC and the appropriate conviction under Section 304 Part I of IPC.

V.K. Tahilramani, J.

1. The appellant has preferred this appeal against the judgment and order dated 4th December, 2010 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 118 of 2010. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code ('IPC') and sentenced him to undergo RI for life and fine of Rs. 500, in default, RI for one month.

2. The prosecution case briefly stated is as under :

Deceased Gauri was married to the appellant about eight years prior to the incident. At the time of the incident, Gauri was residing with her husband i.e. the appellant at Manuwadi behind Tata Compound, Vile Parle, Mumbai. The incident occurred on 3rd November, 2009. Gauri asked the appellant to go to work whereupon, a quarrel took place between Gauri and the appellant. In the course of the quarrel, the appellant poured kerosene on Gauri and set her on fire. Gauri was admitted in the hospital. In the hospital, PW 1-Shri Sankhe recorded the dying declaration (Exhibit 18) of Gauri. PW 2-SEO Mrs. Temkar also recorded the dying declaration of Gauri, which is at Exhibit 19. PW 8-API Kadam also recorded the dying declaration of Gauri. In all the three dying declarations, Gauri stated that a quarrel took place between her and the appellant and in the course of quarrel, appellant poured kerosene on her and set her on fire. The dying declaration recorded by PW 8 – API Kadam, was treated as FIR. Thereafter, investigation commenced. Offence was registered under Section 307 of the Indian Penal Code. Gauri expired on 9th November, 2009, while she was admitted in hospital. Thereafter, the offence was converted from Section 307 to Section 302 of the IPC. The dead body of Gauri was sent for post-mortem. The medical evidence shows that Gauri expired on account of septicemic shock due to 76% superficial to deep burns (unnatural). After completion of investigation, the charge-sheet came to be filed.

Charge came to be framed against the appellant under Section 302 of IPC. He pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.

3. We have heard the learned Counsel for the appellant and the learned A.P.P for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the same, for the below mentioned reasons, we are of the opinion that the appellant poured kerosene on his wife Gauri and set her on fire, which resulted in her death.

4. The conviction of the appellant is mainly based on three dying declarations, which were recorded by PW 1-Shri Sankhe, PW 2-SEO Mrs. Temkar and PW 8-API Kadam. PW 1-Shri Sankhe has stated that he was serving as Tahasildar. On 6th November, 2009, he received a letter from Juhu Police Station that one injured person i.e. Gauri Suryakant Bhoir is admitted in Cooper Hospital with burn injuries. He was informed to record her statement. Accordingly, he went to the hospital and met Gauri. Before recording the statement of Gauri, he asked the doctor whether Gauri was in a fit condition to make a statement. The doctor informed that the patient was conscious and able to give her statement. Thereafter, Shri Sankhe recorded the statement of Gauri. Gauri stated that at about 5:30 p.m., quarrel took place between her and the appellant. The appellant beat her and then put kerosene on her and set her on fire. The dying declaration recorded by PW 1-Shri Sankhe is at Exhibit 17.

PW 1-Shri Sankhe has specifically stated that prior to recording the statement of Gauri, he asked the doctor whether she was in a fit condition to make a statement and the doctor informed him that Gauri is conscious and able