JUDGMENT

The appellant, having been convicted for commission of offence under Sections 302/436 IPC and sentenced to undergo imprisonment for life for commission of offence under Section 302 IPC and to undergo rigorous imprisonment for seven years for commission of offence under Section 436 IPC, has preferred this appeal from jail.

2.The case of the prosecution is that on 18.1.2001 at about 7 : 15 PM, the informant-Pitara Sabar (P.W.3) lodged a written report before the S.I. Police (P.W.6) of Gunupur Police Station at his camp at Padidi alleging therein that on 17.1.2001 at about 5:00 PM, the appellant, came to the village and said that he would burn his mother (deceased) like a person of Odingi was set fire and saying so, he entered into the house and poured kerosene on his mother and set fire to her. Seeing this, the informant and others rushed to the spot and found that while the deceased, in order to save herself, tried to come outside the house, her burning clothes came in contact with the thatched roof as a result of which the fire got spread to other houses. Further, on 18.1.2001, the O.I.C. of Gunupur Police Station received a telephone call from an unknown person that a person had set fire upon an old lady in village Padidi. On getting this information, the O.I.C. made an entry in the station diary and directed the S.I. (P.W.6) to go to the spot for inquiry. On reaching the spot, P.W.6 found Hadia Saburuni lying unconscious with burn injuries on her person. He examined her husband-Lakia Sabar and sent the lady to S.D. Hospital, Gunupur for treatment. Subsequently, he received information that on 19.1.2001 at about 9 : 30 AM, the victim died at the hospital and after completion of the formalities, he filed charge-sheet as against the present appellant under Section 436/302 I.P.C.

3.The appellant took the plea of complete denial and took a specific plea that due to enmity, P.Ws.3, 4 and 5 falsely implicated him in this case.

4.In order to bring home the charge, during trial the prosecution examined as many as six witnesses including the doctor and the investigating officer. The defence examined none despite being provided with said opportunity.

5.The trial judge, who tried the case has convicted the present appellant for above offences and sentenced him thereunder with a finding that the act of the present appellant in setting fire to his mother has also caused the destruction of his house & other houses and the death of his mother.

6.Learned counsel for the appellant assails the order of conviction on the following grounds :

(i)There is no direct evidence with regard to setting of fire and all the witnesses are in enmical term with the present appellant;

(ii)The dying declaration (Ext.3) recorded by P.W.2 is not a believable document as because the deceased sustained 90% burn injuries and in such a situation it is not possible to give a declaration; and

(iii)No intention has been proved by the prosecution and at best the conviction can be sustained u/s. 436 IPC by taking all the evidences.

7.Mr. Agarwalla, learned Additional Standing Counsel strongly contends that the evidence of the Additional Tahasildar-cum-Revenue Officer (P.W.2), who recorded the dying declaration, is sufficient to convict the present appellant under Section 302 IPC. P.Ws.3, 4 and 5 have specifically stated that the present appellant set the deceased on fire in the house to kill her. P.Ws.3, 4 and 5 specifically stated that the appellant gave a declaration that he would set fire to her mother kill her. The medical evidence also corroborated the oral evidence and the dying declaration.

8.Minutely gone through the evidence on record.

P.W.1 is the doctor who initially examined the victim and found 90% deep burn injuries on her person. He prepared the injury report under Ext.1. On 19.1.2001, when the victim died, he conducted autopsy over the dead body of the deceased and found the following :

“There is 90% burn of the body which is deep in nature in presence of p