V.K. Tahilramani, J.

1. This appeal is preferred by the appellant-original accused against the judgment and order dated 30.10.2010 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 128 of 2009. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 1000/- in default R.I. for two months.

2. The prosecution case briefly stated, is as under:

(a) The appellant was married to Meena about 12 years prior to the incident. They had three children. One of them was PW-4 Vaishali. At the time of the incident, the appellant, his wife and their children were residing at Village Nimboli, District Thane. The appellant used to drink liquor and beat Meena under the influence of liquor. Meena used to inform this fact to her brother PW-6 Ganesh, hence, one month prior to the incident, PW-6 Ganesh had taken his sister Meena to his house at Nasik. Meena made a complaint to Mahila Mandal Nashik about the harassment to her by her husband. Thereafter, the dispute was settled in the office of Mahila Mandal Nashik. Meena then went to her husband's house at Nimboli.

(b) There was Bhaubeej festival on 30.10.2008. The sister of the appellant had come to their house, however, on account of the behaviour of Meena, the sister of the appellant along with her husband left the house of the appellant and went away. On account of this, on the next day i.e. on 31.10.2008 in the morning, Ankush (original accused No 2), the brother of the appellant called the appellant and told him why he sent his sister and sister's husband back immediately. Thereupon, the appellant got angry and a quarrel took place between the appellant and his wife Meena. The appellant then poured kerosene on Meena and set her on fire. The appellant then went out of the house. Neighbours extinguished the fire. Meanwhile, the appellant came back and took Meena to the hospital. In the hospital two dying declarations of Meena came to be recorded i.e. Exh.30 and Exh.48. Exh.48 was recorded first in point of time. It was recorded by PW-9 PSI Pashte. The said dying declaration was treated as FIR. Thereafter, investigation commenced. Meanwhile, the second dying declaration of Meena (Exh.30) was recorded by PW-8 API Jadhav and PW-3 S.E.O. Ms. Yasmin Irani. Meena expired on 17.11.2008. The offence was converted from Section 307 to Section 302 of IPC. After completion of investigation, charge-sheet came to be filed. In due course, the case was committed to the Court of Sessions.

3. Charge came to be framed against the appellant under Section 302 of IPC and against the brother of the appellant (accused No. 2) under Section 302 r/w 109 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted original accused No. 2 of the offences charged, however, he convicted and sentenced the appellant-original accused No. 1 as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence.

4. We have heard the learned counsel for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant poured kerosene on his wife Meena and set her on fire.

5. The conviction of the appellant is based on two dying declarations i.e. Exh.30 and Exh.48. As far as the second dying declaration Exh.30 is concerned, we are not inclined to rely on the same because there is no endorsement on the dying declaration about physical and mental fitness