JUDGMENT

Vinay Joshi, J. - The present appeal is directed against the judgment and order of conviction passed by the Additional Sessions Judge, Akola dated 08.09.2021 by which the appellant is convicted for the offence punishable under section 304 of the Indian Penal Code and directed to suffer rigorous imprisonment for a term of ten years along with fine of Rs. 5,000/-. Though the appellant was charged for the offence punishable under Section 302 and 498-Aof the Indian Penal Code, the Trial Court instead of Section 302, held appellant guilty for the offence punishable under Section 304 of the Indian Penal Code and passed aforesaid mentioned sentence. The appellant was acquitted by the Trial Court for the offence punishable under Section 498-A of the Indian Penal Code.

2. The respondent/State has not challenged the appellant's acquittal for the offence punishable under Sections 302 and 498-A of the Indian Penal Code. During trial, the Appellant was in jail.

3. The prosecution case in nut-shell is that the appellant got married with deceased Rekha and they had two issues from said wedlock. On 19.03.2015, in the afternoon, Rekha sustained burn injuries, hence she was admitted to the Irvin Hospital, Amravati. While she was taken to the Hospital, she made an oral dying declaration regarding cause of burns. While Rekha (deceased) was in the Hospital, her written dying declaration has been recorded by the Police Officer under the supervision of the Medical Officer. In her statement, Rekha disclosed that, due to quarrel, appellant/accused poured kerosene at her person and set her on fire. On the basis of said written dying declaration, the Police have initially registered a crime No. 25 of 2015 for the offence punishable under Section 307 of the Indian Penal Code. On the same day, i.e. on 19.03.2015, in the evening, Rekha succumbed to 95 percent burnt injuries, therefore, Section 302 of the Indian Penal Code, has been added.

4. It emerges from the charge-sheet that on 18.03.2015, there was a quarrel between the couple on the point of appellant's liquor addiction. On the following day, i.e. on 19.03.2015 in the afternoon, the appellant (accused) again consumed liquor and picked up quarrel with his wife-Rekha. At that time, Rekha adviced him to quit his addiction on which accused poured kerosene from the stove at her person and set her ablaze with the aid of matchstick. The accused as well as neighboring persons extinguished fire and shifted Rekha to the Irvin Hospital, Amravati, Rekha sustained 95 percent burnt injuries. While Rekha was being taken to the Hospital, she made an oral dying declaration to several persons including her brother. While Rekha was in the Irvin Hospital, her statement came to be recorded by the Police Officer around 6.00 pm. In said statement, she disclosed that accused had set her on fire. Then around 7.30 pm, Rekha succumbed to the burnt injuries.

5. On the basis of registration of crime, the Police commenced the investigation. Panchanama of the scene of offence was carried out. Post Mortem report was collected. Several articles were seized under the Panchanama. Samples were collected and sent for chemical analysation. After completion of investigation, final report has been submitted to the Court of concerned Magistrate. The Trial Court framed charges vide Exhibit 4. Since the accused denied the guilt, the prosecution endeavoured into examining as many as 11 witnesses to establish the guilt. The prosecution heavily relied on the written dying declaration (Exhibit 26) and some other documents. The witnesses to whom the oral dying declaration was made, have not supported the prosecution case. Solely relying on the written dying declaration (Exhibit 26), the Trial Court has convicted the accused. However, the Trial Court observed that the incident was without premeditation and was committed in the heat of passion upon sudden quarrel. The Trial Court held that the incident is covered under exception 4 of Section 300