Honble PASAYAT, J.–Accused-appellant allegedly committed uxoricide was found guilty of offence punishable u/s. 302 Indian Penal Code, 1860 (for short `IPC); and sentenced to undergo imprisonment for life and a fine of Rs. 1000/- with default stipulation of one months imprisonment by 22nd Additional City Civil and Sessions Judge, Bangalore. The appeal before the High Court of Karnataka having yielded no success, this appeal has been filed.

(2). Accusations which led to trial of the accused-appellant in essence are as follows:

(3). On 7.2.1993 Smt. Dharni (hereinafter referred to as ``the deceased) was in the house with the accused-appellant when they quarrelled over certain domestic differences, and the accused poured kerosene and set her on fire. On hearing her screams and seeking coming out of the room, their landlord V.N.Gupta (PW-1) rushed to the spot. He did not find the accused there; but was told by the deceased that the accused had poured kerosene and set her on fire and run away. On receiving of information about the incident Srinivasa Murthy, ASI (PW-6) arrived at the spot alongwith Sivanna (PW-4) Police Constable. The deceased was taken to the Victoria Hospital for treatment. At the hospital PW-6 recorded statement of the deceased in the presence of Dr. M. Narayana Reddy (PW-7). This was treated as FIR. After registering the case, investigation was started. In the Hospital the deceased breathed her last while undergoing treatment on 8.2.1993 at about 10.25 p.m.

(4). Dr. Thirunavukkarasu (PW-3) conducted the post-mortem and found that the deceased had sustained about 80 to 85% ante-mortem burns. On completion of investigation, charge-sheet was placed. Learned Trial Judge on consideration of the evidence on record found the accused guilty, as afore-mentioned, and convicted and sentenced him.

(5). Reliance was placed on the dying declaration which was recorded by PW-6 in the presence of PW-7 and was marked as Exhibit P-7. In appeal before the High Court the accused- appellant contended that the so-called dying declaration was not credible and acceptable. But the High Court did not find any substance in the plea, and dismissed the appeal by the impugned judgment.

(6). Learned counsel appearing for the accused-appellant submitted that the so-called dying declaration (Exhibit P-7) cannot by any stretch of imagination be considered to be a dying declaration in the sense it is understood in law. the same was recorded by PW-6, a police official. though there was ample time, as the factual scenario shows, no effort was made to secure the presence of a Magistrate if really a dying declaration was to be recorded. Furthermore PW-7 has himself stated that the deceased had suffered 100% burns. It is highly improbable that the deceased was in a fit state of health and mind to give the dying declaration. There is no mention in the document treated as dying declaration that the deceased was in fit state of mind to give the statement, PW-6 stated that attempt was made to get permission from the Chief Medical Officer. There is not material to substantiate the claim. On the contrary PW-7 stated that though there was no regulations (sic requisition), being the doctor at the spot at the spot he had given the permission to record the dying declaration on request by PW-6.

(7). The post-mortem report stated that the burns suffered were second and third degree burns and with those types of burns it is unlikely that the condition of the deceased permitted making of a statement and putting of signature. On the basis of uncorroborated dying declaration, conviction should not have been made.

(8). Strong reliance was placed on Munnu Raja & Anr. vs. The State of Madhya Pradesh (1), Laxmi (Smt.) vs. Om Prakash & Ors. (2) and Chacko vs. State of Kerala (3), to contend the evidence recorded by a police official as dying declaration is of no probative value.

(9). Further, it was contended that conviction is impermissible solely on the basis of dying declaration

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