JUDGMENT :

Prithviraj K. Chavan, J.

1. Challenge in this appeal is to the judgment and order of conviction rendered by Additional Sessions Judge, Pune under section 302 of the Indian Penal Code (for short 'I.P.C.') sentencing the appellant to undergo life imprisonment for allegedly committing murder of his concubine.

2. Shorn of unnecessary details, facts germane for decision of this appeal are as follows:-

The appellant was paramour of deceased Anita Ransingh. On 10th April, 1996, around 3.00 p.m., the appellant demanded money for consuming liquor from deceased Anita. As Anita refused to pay money, the appellant started quarreling with her and thereafter poured kerosene on her person and set her ablaze. The appellant thereafter tried to extinguish fire by embracing Anita and while doing so, he too suffered burn injuries to the extent of 30%. Anita succumbed to burn injuries which were about 91%. However, before she succumbed to the burn injuries, her statement came to be recorded by P.W.4-Head Constable-Dilip Jadhav. The said statement was treated as dying declaration of the deceased wherein the deceased alleged to have stated before P.W.4-Dilip Jadhav that when she refused to part with the money for consuming liquor, the appellant poured kerosene on her person and set her on fire. Her statement also indicates that after her clothes and person was engulfed with fire, the appellant tried to extinguish the same by embracing her due to which, he too sustained burn injuries.

3. An offence came to be registered against the appellant on the basis of dying declaration of the deceased with Bundgarden Police Station, Pune, vide C.R. No. 94 of 1996.

4. Investigating Officer recorded statements of the witnesses, drew a spot panchanama, collected the plastic can and certain partially burnt pieces of the saree of the deceased and other articles along with a match box by drawing a seizure panchanama Exhibit 15 in the presence of Panch witnesses. Autopsy report is proved at Exhibit 16. As per the Autopsy report, death of the deceased was due to shock as a result of burn injuries. After the investigation, a charge-sheet was filed in the Court of J.M.F.C., Pune. After committal of the case by the J.M.F.C., Court Room No. 3, Pune on 5th June, 1996, the appellant appeared before the learned Sessions Judge, Pune on 5th September, 1997. A charge was framed under section 302 of the I.P.C. It was explained to the appellant to which he pleaded not guilty and claimed a trial.

5. The defence of the appellant is one of denial of the commission of the offence alleged. When it was asked, during his statement under section 313 of the Cr.P.C., as to whether he wants to add anything, the appellant stated that at the relevant time, he was sitting with daughter of the deceased Sunita-P.W.1 while Anita was cooking food in the house. Anita suddenly came running out of the house as she had caught fire. The appellant embraced her to extinguish the same. She fell down and said that she had committed a wrong. The persons in the neighbourhood took her to the hospital. She was not in a position to speak. No defence evidence has been adduced on his behalf.

6. The learned trial Court after going through the evidence of the prosecution witnesses, more particularly, the dying declaration of the deceased, believed the prosecution case by accepting the evidence on record and convicted the appellant as above. In short, the learned trial Court observed that only because the dying declaration is recorded by a Police man, though the Police man could have requisitioned the services of a Special Judicial Magistrate, that could not be the reason to discard the dying declaration which came to be recorded after duly certifying the condition of the deceased by a medical officer. The learned trial Court, in order to substantiate his findings, placed reliance on a judgment of the Supreme Court in the case of Ramavati Devi Vs. State of Bihar, AIR 1985 Supreme Court 164.

7. With the assistance o