The genuineness and consistency of dying declarations, and the distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code.

JUDGMENT :

N.J. JAMADAR, J.

1. The appellant/accused takes exception to the judgment and order dated 28th November, 2011 passed by the learned Sessions Judge, Satara in Sessions Case No. 128 of 2010 whereby he was convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 (the Penal Code) and sentenced to suffer imprisonment for life and pay fine of Rs. 1,000/- with default stipulation, for having committed murder of his wife Chaya Kashid (the deceased).

2. The background facts necessary for the determination of this appeal can be summarized as under:

(a) The accused was residing at Arvi, Tal. Koregaon, District Satara along with the deceased and their son Rushikesh (8 years) and daughter Rutuja (13 years), his mother Smt. Suman and sister in law Shobha and her children. The accused was serving in Indian Army. Accused was given in to the vice of consuming liquor. The said addiction resulted in abrupt termination of the services of the accused. Even after the accused lost the employment and thus came to reside at Arvi, there was no improvement in the behavior of the accused. He did not engage in any gainful work, and continued to consume liquor resulting in frequent quarrels between him and the deceased.

(b) On 30th March, 2010 at about 2.00 p.m. while the children had gone to school, the accused returned home under the influence of liquor and demanded the deceased to serve food. The later remonstrated and questioned the accused as to how she would run the household if he continued to behave in the said fashion. In the exchange of words, the accused told the deceased that she should die. The accused picked up a stove and removed the stopper of its tank and sprinkled the kerosene on the person of the deceased. Thereafter, the accused ignited the matchstick and set the deceased on fire. The later raised alarm. Co-sister of the deceased, who was in the adjoining room, and the neighbours, rushed to extinguish the fire. Thereafter, she was initially shifted to Public Health Center, Wathar (Kiroli) and therefrom to Civil Hospital, Satara.

(c) Upon admission Dr. Umesh Hendre (PW-3), the medical officer, recorded the history narrated by the deceased. Intimation was given to the police. R.L. Kanade (PW-9) the then police head constable attached to the police post Civil Hospital, Satara recorded the statement of the deceased after Dr. Hendre (PW-3) certified her fitness. The deceased narrated that the accused set her on fire after pouring kerosene on her person. On the strength of the said statement (Exhibit 42) crime was registered for the offence punishable under section 307 of the Penal Code. Investigation commenced thereon.

(d) The investigating officer visited the scene of occurrence and drew panchanama. On 1st April, 2010 Mr. Dattatraya Kumbhar (PW-10), the then A.P.I. Rehmatpur police station, visited the Civil Hospital, Satara and again recorded the statement of the deceased after her fitness was certified by Dr. Jitendra Patil (PW-6). The deceased reiterated the fact that the accused had set her on fire.

(e) As the condition of the deceased deteriorated, Pushpa Yadav (PW-2) the mother of the deceased shifted the deceased to Pawar hospital, Satara, on 4th April, 2010. Dr. P.V. Pawar (PW-7) again recorded the history as narrated by the deceased. Pursuant to intimation by Dr. Pawar (PW-7), Mr. G.D. Thakare (PW-8), the then A.S.I. visited Pawar Hospital and recorded the statement of the deceased in the presence of Dr. Pawar (PW-7).

(f) The deceased succumbed to the injuries on 30th April, 2010. Inquest was held. Postmortem examination was conducted. The autopsy surgeon opined that the deceased died due to 70% burn injuries. The investigating officer interrogated the witnesses and recorded their statements. After finding the complicity of the accused, charge sheet was lodged against the accused for the offence punishable under section 302 of the Penal Code in the Court of jurisdictional Magistrate.

3. Upon committal,