Annie John, J.

1. This appeal is filed under Section 374 (2) Cr.PC through the Superintendent, Central Prison, Kannur challenging the judgment of conviction and sentence passed by the Sessions Court, Thalassery.

2. The appellant herein was the sole accused in Crime No. 101 of 2008 of Peringome Police Station for the offences punishable under Sections 498A and 302 IPC. The allegation of the prosecution was that the appellant used to torture his wife Chithra @ Bindu, physically and mentally, suspecting her chastity. On 26.03.2008, at 1 p.m. the appellant, with an intention to commit murder of his wife, poured kerosene, set fire on her clothes and she has sustained serious burn injuries. While undergoing treatment at Pariyaram Medical College, she died on 30.03.2008 at 8.45 p.m. and thereby the appellant is alleged to have committed the aforesaid offences.

3. During the course of trial, the prosecution has examined PWs. 1 to 23 and marked Exts. P1 to P21 and MOs 1 to 7. On the side of defence, no evidence was adduced and it is denied to have committed such offences. The case was registered originally under Sections 498A and 307 IPC on the basis of the FI statement lodged by the deceased herself. After the death of victim, Section 307 IPC was deleted and Section 302 IPC was incorporated.

4. The learned counsel for the appellant has argued that after evaluating the entire evidence, the lower court has erroneously convicted the accused relying on the FI statement given by the wife of the appellant and the finding entered by the lower court that the appellant is guilty of the offence punishable under Section 498A is not sustainable. It is also argued that no independent evidence was adduced on the side of the prosecution and the lower court ought to have considered the fact that there was no evidence against the appellant that he has tortured his wife demanding dowry or for any other reasons to attract Section 498A IPC. The lower court ought not to have relied on the statement given by the deceased under Section 164 Cr.PC. Hence, the appellant filed this appeal challenging the conviction and sentence passed by the Additional Sessions Judge, Adhoc-III, Thalassery in S.C. No. 560 of 2008.

5. This is a case which was originated on the basis of the FI statement given by the deceased Chithra @ Bindu, who was the wife of the appellant herein. The appellant and Chithra got married at Thimiri Siva Temple on 15.11.2003 and this fact has not been denied at the time of argument. So, it is proved that the appellant as well as the deceased Chithra got married legally and they were living together as husband and wife till her death. The prosecution alleged that the appellant's wife has been undergoing torture, physically as well as mentally, as he has suspected her chastity when they were residing in rented houses in various places. On 26.03.2008, at 1 p.m. while Chithra was doing household works at the kitchen of the quarters bearing door No. 3/437 of Vayakkara Panchayath, the appellant, with an intention to commit murder, poured kerosene on her clothes and set fire and accordingly she sustained burn injuries upto 80% and she was admitted at Pariyaram Medical College Hospital, Kannur. While undergoing treatment, she succumbed to injuries on 30.03.2008 at 8.45 p.m. She has given FI statement, and on that basis the crime was registered under Sections 498A and 307 IPC.

6. Now the prosecution has alleged that the appellant, with an intention to commit murder, poured kerosene on the body of the victim, who is none other than the wife of him, and lit fire. Accordingly she sustained 80% burn injuries and while she was in hospital, she succumbed to injuries. Hence the section was altered and Section 302 of IPC was incorporated. The prosecution has mostly relied on Ext. P8 dying declaration as well as the evidence of PWs. 1 to 5 and PW-16.

7. The learned counsel for the appellant has contended that the lower court has relied on the dying declaration an