JUDGMENT :

J. Nisha Banu & N. Anand Venkatesh, JJ.

1. The appellant, who was convicted for offences under Sections 302 and 294(b) IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.2,500/- (Rupees two thousand five hundred only), in default, to undergo rigorous imprisonment for one month for offence under Section 302 IPC and to undergo simple imprisonment for three months for offence under Section 294((b) IPC, preferred the present criminal appeal against the judgment and order dated 28.04.2017 made in S.C.No.221 of 2015 on the file of the V Additional District and Sessions Judge, Madurai,

2. The case of the prosecution is that the appellant and the deceased Saravanaselvi are husband and wife and they have three daughters. The further case of the prosecution is that the appellant was a drunkard and there used to be regular wordy quarrel between the appellant and the deceased and the appellant is said to have tortured the deceased by physically abusing her. The appellant also did not go for any work and this was questioned by the deceased several times.

2.1. On 20.06.2014 at about 4.00 p.m., when the deceased was in her house, the accused came to the house and started shouting at the deceased stating that she should not live in that house and he is said to have abused her in a foul language. Thereafter, the appellant is said to have poured kerosene on the body of the deceased and set fire. As a result, the deceased sustained serious burn injuries and was taken to the Government hospital, Virudhunagar. The deceased ultimately succumbed to her injuries on 25.06.2014 at 9.00 p.m.

3. The trial Court examined P.W.1 to P.W.12 and marked Exs.P1 to P11 documents and material objects were identified and marked as M.Os.1 and 2. On completion of the evidence on the side of the prosecution, the appellant was questioned under Section 313(1)(b) of Cr.P.C. on the incriminating evidence that was brought-forth by the prosecution and the appellant pleaded innocence and he stated that he has been falsely implicated in this case.

4. The trial Court, on appreciation of the evidence and on considering the facts and circumstances of the case, came to the conclusion that the prosecution has made out a case against the appellant beyond reasonable doubts and thereby convicted and sentenced the appellant as stated supra. Aggrieved by the same, the present criminal appeal has been filed before this Court.

5. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State.

6. The learned counsel for the appellant submitted that the prosecution had examined P.W.2, who was the daughter of the deceased and the appellant, who is said to be an eyewitness to the entire incident. That apart, the prosecution had also relied upon the dying declaration [Ex.P-8] of the deceased and the cause of death as was spoken to by the Doctor [P.W.6] and these were the main materials that were put against the appellant to convict and sentence him for the offence of murder. The learned counsel submitted that P.W.2 could not have been present in the scene of occurrence, since the occurrence is said to have taken place at about 4 p.m. and whereas P.W.2 had gone to the school and she could have reached the house only around 5.15 p.m.

6.1. The learned counsel further submitted that the appellant had also sustained burn injuries and he was admitted in the hospital and it has been spoken to by P.Ws.1 and 3 and also the investigation officer examined as P.W.12 and there is absolutely no investigation as to the cause of the injuries sustained by the appellant. The learned counsel further submitted that all the medical evidence in this case shows that the deceased died only due to septicemia and hence even if the evidence put against the appellant is taken to be true, the appellant cannot be convicted for an offence under Section 302 IPC and at the best, he can only be convicted under Section 326 IPC. The learned counsel, in