JUDGMENT

V. G. Bisht, J. - This Appeal is filed by the State challenging the judgment and order of acquittal dated 16th August, 2003 passed in Sessions Case No. 117 of 2002 by learned Sessions Judge, Nashik, for the offence punishable under Sections 302 of the Indian Penal Code (for short "IPC").

2. Briefly stated, the prosecution case is as under:

(a) On 18/04/2002 PW-9 PI Ramesh Nimbaji Patil was attached to Ghoti Police Station. He received a message from Ghoti Rural Hospital regarding admission of Chandrakala (since deceased) having suffered burn injuries. He rushed to Ghoti Rural Hospital and with the help of Medical Officer (PW-5) recorded the statement of of the deceased.

(b) It appears from the statement of the deceased that on 18/04/2002 the deceased along with her husband, namely, Balu Valu Choudhari (accused) and her savat ( a rival wife) Manda were residing at Khambale, Taluka-Igatpuri. At about 10-00 a.m. while the deceased was going to work in the field of her uncle,namely, Pandharinath Choudhary, the accused passed remarkThe deceased asked the accused not to speak wrong things and that since he does not bring the essentials for the use of house whether she should remain starved. After hearing this, it is alleged, the accused got annoyed and told her that he would kill her and then he brought a can of Kerosene, poured on her person, set her ablazed and ran away.

(c) It then appears from the record that on the basis of the said statement-cum-dying declaration, PW-9 registered the offence vide CR No. 47 of 2002 under Section 307 of the IPC. However, during the course of treatment the deceased succumbed to the burn injuries and therefore, the offence under Section 307 came to be converted into an offence under Section 302 of the IPC.

3. To substantiate the charge against the respondent-accused, the prosecution has examined as many as 9 witnesses and exhibited number of documents. The respondent-accused was questioned under Section 313 of the Code of Criminal Procedure (for short, 'Cr.P.C.') about the incriminating evidence and circumstances appearing against him and he denied all of them as false. According to him, a false case is filed against him.

4. Mr. Konde-Deshmukh, learned APP, took us through the evidence adduced by the prosecution and vehemently submitted that the learned trial judge erred in coming to the conclusion that the respondent-accused is entitled to have benefit of doubt. According to learned APP, it was wrong on the part of learned trial judge to disbelieve the dying declaration which is duly proved by PW-9 investigating officer and there being no infirmity in the said dying declaration, learned trial judge ought to have placed reliance and have convicted the respondent-accused. In view of this, the present Appeal deserves to be allowed, argued learned APP.

5. Mr. Kulkarni, learned counsel for the respondent-accused, on the other hand, supported the impugned judgment and order of acquittal. According to learned counsel, the learned trial judge has taken into consideration all the relevant aspects of prosecution case and rightly disbelieved the so called dying declaration. Since neither there is perversity nor illegality, the impugned judgment and order should not be interfered with, argued learned counsel.

6. Before we look into the dying declaration which is being relied on by the prosecution, we think it proper firstly to go through the medical evidence.

7. PW-6 Dr. Sanjay Sampat Kadam states in his evidence that on 18/04/2002 he conducted postmortem on the dead body of the deceased which was totally burnt. According to him, the cause of death was 100% burns. He then proved the contents of postmortem report at Exh. 31.

8. It may not be out of place to mention here that there is no dispute from the side of defence that the deceased had sustained burn injuries. It is also apparent from the medical evidence which is again not disputed by defence that the cause of death was 100% burns. Now, whether the death