The dying declaration and complaint were considered credible evidence, and the absence of a doctor's endorsement on the dying declaration was not considered significant. The court applied Section 106 of the Evidence Act to shift the burden of proof to the accused due to the special knowledge of the events.

JUDGMENT

Abhay Ahuja, J. - This is an Appeal preferred by the Appellant (Original Accused) against the judgment and order dated 28th June, 2017, passed by the learned Additional Sessions Judge, Thane, in Sessions Case No.586 of 2014, thereby convicting the Appellant for offence punishable under Section 302 read with Section 504 of the Indian Penal Code, 1860 ("IPC") and sentencing the Appellant to suffer imprisonment for life and fine of R.5,000/-, in default to suffer further rigorous imprisonment for three months.

2. The case of the prosecution is briefy stated as under :-

(a) The deceased Shama Allabaksh Shaikh was wife of the Appellant. On 6th August, 2014, at around 4.00 p.m. the Appellant came home and asked the deceased to serve food. It is stated that the deceased had not prepared any food as she was expecting him for food in the evening and was yet to prepare the food. The Appellant started quarreling with the deceased and started abusing her, with flthy language and gave provocation to her to breach public peace. Thereafter, the Appellant started assaulting the deceased and then picked up the plastic can containing kerosene and poured kerosene on the person of the deceased and after lighting a match stick threw the same on her, setting her on fre, knowing that the said act would cause the death of the deceased/complainant.

(b) Shama was first taken to Indira Gandhi Memorial Hospital, Bhiwandi and thereafter as per the recommendation of the doctor there, was brought to Thane Civil Hospital by her mother, the Appellant and a neighbour for further treatment with 85% to 90% burns in the burns ward.

(c) On 6th August, 2014 PI Deepak Dinkar Barge, attached to Nijampura Police Station (PW-4) went to Indira Gandhi Memorial Hospital and after obtaining doctors endorsement about Shamas condition to make statement, recorded her complaint (Exhibit-26) where she has categorically stated that at around 4.00 p.m. on 6th August, 2014 her husband came back to the house in a drunken state and after abusing her and assaulting her on her failure to prepare meals, poured kerosene from a plastic can in the house and set her on fire and, therefore, she was making the complaint against her husband.

(d) On 7th August, 2014 Dhondiba Gopinath Khansole (PW-3), working as a Talathi with delegated powers as Special Executive Magistrate, was directed to record statement of Shama Shaikh who was admitted to Thane Civil Hospital as a burn case. After obtaining endorsement from the doctor on the patients condition to make a statement, recorded statement/dying declaration (Exhibit-22) of the complainant/deceased by following due procedure in the required format after Shama Shaikh stated that as she did not prepare meals, her husband got annoyed and set her on fre.

(e) Based on the above, offence under Section 307 read with Section 504 of the IPC was registered on 6th August, 2014 which, as it transpired, later on due to death of the complainant, was converted into Section 302 read with Section 504 of the IPC.

(f) On 12th August, 2014 at 8.10 a.m., Shama succumbed to her injuries at Thane Civil Hospital.

(g) On 12th August, 2014 itself Dr. Pradnya Ganesh Band (PW-2) conducted postmortem of the complainant/deceased. The Postmortem Report (Exhibit-15) shows the probable cause of death was septicemic shock due to 85% burn injuries.

3. The investigation was carried out and after completion of investigation, the Charge (Exhibit-4) came to be framed on 1st April, 2017 against the Appellant (Original Accused) under Sections 302, 307, 323 and 504 of the IPC and the Appellant was charge sheeted.

4. According to the prosecution, while committing the said act of pouring kerosene on the complainant and setting her on fire, the Appellant (Original Accused) also abused the complainant/ deceased in filthy language and provoked her to commit the breach of public peace. Therefore, on the complaint lodged by the complainant/deceased herself, an offence initially punishable under Se