M. Sasidharan Nambiar, J.

1. The accused in Session Case No.48 of 1998 on the file of the Additional Sessions Court, Kalpetta is the appellant. He was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for the murder of his wife, Vijayalakshmi, daughter of PW3, Meenakshi. Prosecution alleges that the appellant, deceased Vijayalakshmi and their son, PW2, Vineesh, were residing in a house situated near to the maternal house of the deceased were P.W.3 and P.W.1, brother of the deceased, were residing. Apart from PW2 the appellant has an elder daughter in the deceased. The prosecution case is that on 30.7.1995, deceased Vijayalikshmi had come to the house of her mother and prepared rice flour and returned back to her house at about 2 pm. At about 3.30 p.m. only the deceased, appellant and PW2 were inside their house. PW3 heard the cry of Vijayalikshmi that she is being killed and P.W.3 rushed to the house of the deceased. PW3 found that the deceased was engulfed in flames. The appellant was coming out of the house through the northern kitchen door. Hearing the cry of P.W.3, neighbours also rushed to the house and tried to put out the fire. Deceased had sustained severe burns by that time. She was immediately taken to Fathima Hospital, Kalapetta. PW1, brother of the deceased, hearing the news, rushed to the hospital. As advised from the hospital, Vijayalakshmi was taken to the Medical College Hospital, Kozhikode. PW10, Dr. Shivakumar, Lecturer in Neuro Surgery, examined Vijayalakshim at 6.45 p.m. on 30.7.1995 and prepared Exhibit P7 would certificate an admitted her in the hospital. PW10 found 100% burns on the body of Vijayalakshmi. Vijayalakshmi succumbed to her injuries on that night itself. PW 18, sub Inspector of Police of Kalpetta Police Station, on getting information, reached the Medical College Hospital at 10.30 p.m. on 30.7.1995. As the injured could not speak, P.W.18, Sub Inspector recorded Exhibit P1 first information statement of PW1 and after returning to the Police Station, Exhibit P1(a) FIR was prepared and registered Crime No.182 of 1996 of Kalpetta Police Station for the offences punishable under section 307 and 498A IPC. After getting information of the death of Vijayalakshmi, PW18 submitted Exhibit P14 report to the court that offence punishable under section 307 IPC is substituted by offence under Section 302 IPC and the matter is being investigated. On the transfer of PW18, from that station, his successor, PW17, Circle Inspector of Police, took over the investigation on 31.7.1995 and prepared Exhibit P3 inquest report. He submitted the report for conducting the postmortem and PW9, Forensic Surgeon, conducted the Postmortem examination on the body of the deceased on 31.7.1995 and prepared Exhibit P6 report. PW16, arrested the appellant on 1.8.1995 and got him examined by PW11 Civil Surgeon of Government Hospital, Kalpetta and got prepared Exhibit P8 wound certificate. PW16, the successor of CI, continued the investigation. PW2, at the time of the incident was aged less than 4 years. PW 16 took steps to record the statement of PW2 under Section 164 of the Code of Criminal Procedure. Though PW2 was produced before Judicial First Class Magistrate, Mananthavady on 26.8.1995, the Magistrate could not record his statement under Section 164 of the Cr.P.C. as the child was not able to give any statement. After completing the investigation, PW17, laid the charge before the Magistrate, who in turn committed the case to the Session Court.

2. Learned Session Judge framed the charge for the offences punishable under Section 302 and 498A of IPC. Appellant pleaded not guilty. Prosecution examined PWs 1 to 18, got marked Exhibits P1 to P14 and got identified Mos.1 to 13. On the side of the defence Exhibits D1 and D2 portions of the statements of PWs 3 and 6 recorded under Section 161 CR.P.C. were got marked. After questioning the appellant under