JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant herein against the impugned judgment dated 28/09/2013 passed by learned 3rd Additional Sessions Judge, Durg in Sessions Trial No. 254/2011 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine, additional R.I. for 1 month.

2. Case of the prosecution, in brief, is that in the intervening night of 29-30/07/2011 near Teen-Darshan Temple, Boudh-Vihar, Camp-1, Bhilai, the appellant herein poured kerosene oil over her husband Khemraj Shyamkunwar and set him ablaze and caused his death thereby, committed the aforesaid offence.

3. Further case of the prosecution is that appellant and deceased had entered into a love marriage on account of which family members of the deceased were not happy and they did not even participate in their wedding. On the night of the incident, deceased came home after consuming liqour on account of which some dispute arose between the appellant and his younger brother Dinesh Kumar Shyamkunwar (PW-5) and thereafter, all the family members went to sleep. Late at night, appellant informed Bhoomiraj Shyamkunwar (PW-1), brother of the deceased, that her husband has set himself on fire and he has suffered burn injuries. Thereafter, fire was extinguished and appellant, who had suffered severe burn injuries, was taken to the District Hospital, Durg for treatment. He was examined by Dr. R.K. Naik (PW-15) and as per the MLC report (Ex.P/16) though he had suffered 90-95% burn injuries but he was in a conscious condition and so, Dr. R.K. Naik (PW-15), after certifying that he was physically and mentally fit to give his dying declaration, himself proceeded to record the dying declaration of the deceased vide Ex.P/18 at about 05:10 AM on 30/07/2011 in which the deceased stated that his wife (appellant herein) poured kerosene oil over him and set him ablaze. On the same day, at about 11:45 PM, deceased succumbed to his injuries which was informed to the Police and merg intimation was registered vide Ex.P/9 and P/10. Inquest was conducted vide Ex.P/1 and the dead body was subjected to postmortem which was conducted by Dr. A.K. Mishra (PW-11) and as per the postmortem report (Ex.P/8), cause of death is said to be shock on account of 100 % burns. First information report was lodged against the appellant vide Ex.P/12 and after due investigation, appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 16 witnesses and brought on record 20 documents. Statement of the appellant was taken under Section 313 of Cr.P.C. wherein she denied guilt, however, she examined none in her defence and only brought 3 documents on record.

5. Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offence punishable under Section 302 of IPC relying upon the dying declaration (Ex.P/18) given by him to Dr. R.K. Naik (PW-15) as well as upon the oral dying declaration allegedly given by the deceased to his brothers Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5) and sentenced her as aforesaid.

6. Mr. Manoj Mishra, learned counsel for the appellant, would submit that the dying declaration (Ex.P/18) ought to have been recorded by an Executive Magistrate and no such endeavour was made by the prosecution to get the deceased examined by Executive Magistrate, therefore, Ex.P/18 is not trustworthy and cannot be made basis of conviction of the appellant. He would further submit that so far as the oral dying declaration allegedly given by the deceased to Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamk