By Court. This appeal arises out of the Judgment of conviction and order of sentence dated 27.05.2003 and 28.05.2003 respectively, passed by learned Additional Sessions Judge, Fast Track Court No. 1, Chaibasa, in Sessions Trial No. 31 of 2000, convicting the appellant under section 302 IPC and sentencing him to undergo R.I. for life and pay a fine of Rs.4,000/-and in default R.I. for six months was imposed.

2. The prosecution case is based on the dying declaration of Jema Purty ( deceased-wife of the appellant). She gave the said statement in the ladies ward of hospital on 11.9.1999 at about 10 P.M. before Shakuntala Devi, the Sub Inspector of Police-, Sadar Thana ( Court Witness-1), to the effect that the appellant had two wives. The first wife was alive. The appellant was working as a Peon in the Forest Department. He was not providing her expenses, for which there was quarrel between them in the morning on that day. The appellant called the deceased in a bungalow of one Forest Officer (K.K. Chatterjee) where she reached at about 6 P.M. The officer was not present. In the veranda, where the appellant used to live, he started quarreling with her again. The appellant became furious and sprinkled kerosene oil on her body and lighted match, due to which she started burning. On her cry, P.Ws.-1 and 2 reached there and they along with appellant took the deceased for treatment in hospital.

3. The police registered a case under section 498(A) and 307 IPC .The deceased Jema Purty died after about four days i.e. on 14.1.1999 during treatment. The I.O. added section 304 (B) IPC and the charge sheet was submitted under section 304 (B) IPC, on which cognizance was taken. However, the trial court altered the charge under section 302 IPC after hearing the parties. Accordingly, charge was framed.

4. Learned counsel for the appellant submitted that the dying declaration is not reliable. If deceased had 90% burn injury she could not put her signature on her fardbeyan. He further submitted that no doctor has been examined in this case to prove that the deceased was in a position to make statement. He also submitted that even as per the prosecution case, the alleged occurrence took place during quarrel and in heat of passion and therefore at best the appellant could be convicted under section 304 Part I or Part II IPC.

5. On the other hand, Mr. Verma, learned counsel for the State, supported the impugned judgement.

6. The defence was that the deceased was not his wife. She had independent source of income and therefore there was no question to call her at the alleged place of occurrence and that the FIR was lodged at belated stage and that the appellant has been falsely implicated in this case.

7. The prosecution examined seven witnesses. P.W.1-Pandey Ram Sardar, Forest Guard and P.W-2-Raghu Ho, Peon of the Forest Department are the persons named in the FIR. They supported the prosecution case to the effect that they reached at the place of occurrence on hearing the cry of the deceased. The appellant was also present. The deceased was burning. These two P.Ws. including the appellant, extinguished the fire by cloths. In the hospital, the police came and the deceased gave her statement in presence of these witnesses. Police also took the statement of these witnesses. Both these witnesses confirmed the statement made by the deceased before the police. It may be noted here that after the amendment of charge, when P.W. 2 was further cross-examined, he said that the deceased became senseless and she remained senseless at the time of admission in the hospital and that he was not in a position to say when she gained sense. However, such statement of P.W-2 is not fatal to the prosecution case in view of the other materials on record fully corroborating the statement of the deceased/dying declaration.

8. P.W-3-Phulmani Mundri is the Nurse of Sadar Hospital, Chaibasa. She specifically said that the deceased gave her statement before the police in her