Basheer, J.

Appellant was charge sheeted by Perinthalmanna Police for committing murder of his wife Mehaboobi, aged 32 years, by setting her ablaze after pouring kerosene over her body at about 7.30 a.m. on July 17, 2001. According to the prosecution, Mehaboobi and her three minor children were living with the appellant in his residence at the relevant point of time. He doubted the chastity of his wife who was working as an agent in the Life Insurance Corporation of India.

2. Police had registered the crime on July 18, 2002 after recording Ext.P13, statement of the victim, at Alshifa hospital in Perintalmanna. The Head Constable who recorded the statement, noticed burn injuries on the face, neck, chest, abdomen, etc. of the victim. Those injuries were recorded in Ext.P13 statement and pursuant to that Ext.P14, First Information Report, was registered for the offence under Section 307 Indian Penal Code. Investigation was conducted by PW14 and 16 and charge sheet was laid by PW15. But since the victim succumbed to the injuries later, charge sheet was laid after investigation for the offence under Section 302 IPC.

3. Prosecution examined PW1 to PW16 and marked Exts.P1 to P19 and M.O.1 on its side. There was no oral or documentary evidence on the side of the defence.

4. The learned Additional Sessions Judge, after evaluating the oral and documentary evidence on record, held that the prosecution had succeeded in proving the charge against the appellant under Section 302 IPC and accordingly convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine suffer simple imprisonment for a further period of two years.

5. Sri.Vijayabhanu, learned counsel for the appellant, submits that the court below had committed serious illegality in holding the appellant guilty in the absence of any legal proof as regards the actual cause of death of the victim. He contends that neither Ext.P9, dying declaration, allegedly recorded by PW9, the Judicial Magistrate of First Class, Perinthalmanna nor Ext.P13, First Information Statement, could have been admitted in evidence as valid pieces of evidence under Section 32 of the Indian Evidence Act to hold the appellant guilty. Alternatively, it is also contended by the learned counsel that even assuming the so called dying declaration is accepted in evidence, appellant could not have been convicted and sentenced under Section 302 IPC. According to the learned counsel, having regard to the entire facts and circumstances of the case, appellant can be found guilty only under Section 304 Part II IPC. Are the above contentions legally tenable and valid?

6. It may at once be noticed that some of the material witnesses like the daughter and mother of the victim and neighbours had failed to support the prosecution. PW1, one of the neighbours, deposed before the court that she had come to the courtyard of the residence of the appellant on hearing a loud cry at about 7 a.m. According to this witness, she saw a fireball collapsing on the heap of sand in the courtyard. She realised that it was the deceased. She saw the deceased herself trying to douse the fire by putting sand on her body. PW1 tried to pour some water on the body of the victim. By that time the appellant, the husband of the victim, came to the scene. The children were standing nearby. According to this witness, she poured some water on the body of the victim and the appellant also tried to do so. He also sustained some burn injury in the process. Appellant brought a jeep to take the victim to the hospital. PW1 went along with the appellant to the hospital. According to PW1, the victim was in a position to talk. She found some burn injuries on the chest, face near the eye etc. According to this witness, the victim had walked up to the jeep. She was taken to Alshifa Hospital. She further stated that the husband and the victim had been leading a cordial marital life.

7. PW2, the m