JUDGMENT :

N.R. BORKAR, J.

1. This appeal takes an exception to the Judgment and order dated 28th January, 1998 passed by the learned 2nd Additional Sessions Judge, Nashik, in Sessions Case No. 194 of 1997.

2. By the impugned Judgment and order, the appellant who was an accused before the trial Court has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine to suffer Rigorous Imprisonment for six months.

3. It is the case of the prosecution that the deceased Ashabai was the wife of the accused. The incident took place on 16th July, 1997. According to the prosecution, on the day of incident, quarrel took place between the deceased and the accused and during the said quarrel, the accused poured kerosene on the person of the deceased and set her on fire. The deceased succumbed to her burn injuries on 17.07.1997 at about 10.30 p.m.

4. We have heard the learned counsel for the appellant/accused and the learned APP for the Respondent/State.

5. It is submitted on behalf of the appellant/accused that there is no evidence on record to show that the accused was husband of the deceased and was residing with her during the relevant period. It is submitted that on the day of incident the accused had gone to the area where the deceased was residing, to collect certain articles from his friend. It is submitted that the accused has nothing to do with the alleged incident. It is submitted that the trial Court was, therefore, not justified in convicting the appellant/accused. In the alternative, it is submitted that even if the case of the prosecution is accepted as it is, at the most it would constitute offence of culpable homicide and not of a murder.

6. On the other hand, it is submitted on behalf of the respondent/State that the witnesses have categorically deposed that the accused was residing with the deceased. It is submitted that the deceased in her dying declaration has stated that her husband had poured kerosene on her person and set her on fire. It is submitted that considering the evidence on record, the trial Court was justified in convicting the accused for the offence punishable under Section 302 of the IPC.

7. The only incriminating evidence against the accused is the dying declaration of the deceased.

8. PW-4 Special Judicial Magistrate, Shri Shivaji Pawar recorded the said dying declaration of the deceased. According to him, he visited the Civil Hospital Nashik on 17.07.1997 at about 3.30 a.m. and recorded dying declaration of the deceased. According to PW-4, the deceased disclosed to him that her husband poured kerosene on her person and set her on fire.

9. In the cross-examination conducted on behalf of the accused, PW-4 has admitted that there were burn injuries on the entire body of the deceased. It was suggested to PW-4 that the deceased was not in a position to give statement. However, before recording statement of deceased by PW-4, she was examined by Medical Officer PW-3 Dr. Subhash Siddhapure and statement of the deceased was recorded only after she was found fit. Considering the evidence of PW-3 and PW-4 and in absence of any material to disbelieve them, no doubt can be raised about the dying declaration of the deceased.

10. The defence of the accused is that the deceased was neither his wife nor he ever stayed with her. According to the accused, on the day of incident, he had gone to the house of his friend in the area where the deceased was residing. While he was at the house of his friend, he heard cries of deceased and went to her house. There he saw that the deceased was engulfed in flames and therefore he alongwith others tried to extinguish the fire and in that attempt he too sustained burn injuries. If the defence of the accused was that he was not residing with the deceased, then it was necessary for him to examine witnesses from the locality where he was residing. Howev