Srinivasan, J. - (1.) The appellant is challenging the concurrent judgments of the courts below whereby he was convicted for an offence under Section 302, I.P.C. and sentenced to suffer imprisonment for life. He was also directed to pay a fine of Rs. 5000/-.
(2.) On the night of 29-6-85 the appellant poured kerosene oil over the head of his wife from behind and lit a match-stick and set her on fire. She was admitted in the hospital around 1.00 a.m. on 30-6-85. Her statement regarding cause of her death was recorded on 1-7-85 by PW 18, Sub-Inspector of Police marked as Ex. 6. Another statement marked as Ex. 5 was recorded on 11-7-85 by PW 12, a Magistrate, who was sent to the hospital under orders of the High Court. In both the statements she had stated that her husband came home in a drunk condition in the mid- night of 29-6-85 and assaulted her severely. She was driven out of the room but as her two children were sleeping inside she went back to the room. Then he poured kerosene oil from behind and set fire. Her parents were sent for and her father took her to the hospital. Thus in both the statements she had accused her husband of having set fire to her after pouring kerosene. The Courts below relied upon the two statements and also the evidence of the post-mortem examiner to the effect that the burn injuries were such that they lead to the conclusion that the death was homicidal. The courts below have also referred to all the circumstances of the case and rejected the defence that the wife of the appellant committed suicide or that the offence should if at all be considered to be one under Section 306, I.P.C. and not 302, I.P.C.
(3.) Learned counsel for the appellant places reliance on the following circumstances:- (i) The case history noted in Ex. A by P.W. 9, a senior House Surgeon as soon as the deceased was admitted in the hospital states that the deceased tried to burn herself after pouring kerosene on her person in a suicidal attempt. (ii) The father of the deceased (PW 1) wrote a letter on 30-6-85 to the police which has been treated as First Information Report in which it is stated that he was convinced that his son-in-law abetted his daughter in committing suicide. (iii) P.W. 7 has stated that the deceased was speaking normally soon after the incident and she claimed to have set fire on herself. (iv) The two statements recorded by the Sub-Inspector of Police and the Magistrate marked as Exhs. 6 and 5 respectively cannot be considered as dying declaration and given any weight as the deceased lived for twenty days and more till 31-7-85. (v) The Judicial Magistrate who recorded the statement in Ex. 5 did not ascertain the mental condition of the deceased and, therefore, her statement is not reliable in view of the ruling in Kanchy Komuramma v. State of Andhra Pradesh, (1995) 4 Suppl. SCC 118. (vi) In the first instance the case was registered under Section 306. When the charge was framed it was under Section 302, I.P.C. After examination of 9 witnesses, the Presiding Officer of the Court framed an alternative charge under Section 306, I.P.C. The accused moved the High Court against the order framing an alternative charge in a revision but the same was dismissed. Thus the prosecution was in a confusion as to whether the appellant was guilty under Section 302, I.P.C. or under 306, I.P.C. ;