JUDGMENT (Per : S. B. Deshmukh, J.) 1.The appellant, who stands convicted in Session Trial No.07 of 2004, by the Judgment and order of conviction dated 29th April, 2005 and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-(Rs. One Thousand Only), in default, to undergo further S.I. for one month, is in Appeal before this Court. 2. The prosecution story may be narrated compendiously; that complainant Chandrabhaga Bhagat, used to live at village Nanza and was doing labour work. She had a daughter by name Ramabai from her first husband. The marriage of daughter of Chandrabhaga took place with the appellant (herein after referred to as “accused” for convenience). Accused, used to live at Chandrapur before the marriage. After marriage accused along with Ramabai, came to village Nanza and was residing with complainant Chandrabhaga Bhagat. Ramabai had two sons namely Pankaj and Dhiraj from accused. On February 14th, 2003, in the evening, the accused asked his wife Ramabai to serve food to him. In the meantime, accused gave a slap to his son Dhiraj, due to which Ramabai asked accused as to why he beat the son. Accused, thereafter, started giving beatings to Ramabai. Pankaj, the another son of Ramabai questioned the accused as to why he was beating to his mother. The accused also rushed towards Pankaj to beat him. The accused brought his wife inside the room and the complainant Chandrabhaga got the smell of Kerosene coming out from the said room. Chandrabhaga along with Pankaj went inside the room and found that accused was trying to burn Ramabai. Pankaj snatched the burning match stick from his hand. The accused, thereafter, threw another burning match stick on the body of Ramabai, due to which she was burnt. Chandrabhaga, the complainant, was trying to extinguish the fire due to which her hands were burnt. Ramabai was rushed to the hospital in burnt condition. Ramabai in the hospital, was saying that her husband should not be allowed in the hospital as he had burnt her by pouring Kerosene on her person. Ramabai, thereafter, was brought to main hospital at Yavatmal, where she died on the next day. The accused, thereafter, absconded. The doctor of the main hospital informed the police about the death of Ramabai. The police prepared the inquest panchanama of her dead body and it was sent for Post Mortem. Ramabai, thereafter, was brought to main hospital at Yavatmal, where she died on the next day. The accused, thereafter, absconded. The doctor of the main hospital informed the police about the death of Ramabai. The police prepared the inquest panchanama of her dead body and it was sent for Post Mortem. The police obtained the report of the incident from complainant Chandrabhaga, and on its basis registered the offence against the accused for the offence punishable under Section 302 of the Indian Penal Code. The police, thereafter, went to the spot, prepared the panchanama. One plastic can and burnt piece of Saree smelling of Kerosene, were seized under the seizure memo from the spot. Incriminating articles were forwarded to the Chemical Analyzer, Nagpur. Statements of the witnesses were recorded. Since accused was absconding, charge sheet was submitted against him, for the offence punishable under Section 302 of the Indian Penal Code, before the learned Judicial Magistrate First Class, Kalamb. Accused was traced,arrested and supplementary charge sheet against him came to be submitted before the learned Judicial Magistrate First Class, Kalamb, for the offence punishable under Section 302 of the Indian Penal code. The learned Judicial Magistrate First Class, Kalamb, after perusal of the charge sheet found that offence punishable under section 302 of the Indian Penal Code was exclusively triable by the Court of Session, and thereby committed the case to the Court of Session at Yavatmal, for disposal according to law. The learned Trial Court, framed the charge at Exh.07, for the offence punishable under Section 302 of the Indian Penal Code against the accused. Charge was read over and explained to the accused, who denied the same and claimed to be tried. The defence of the accused seems to be that his wife Ramabai died accidentally while preparing food. 3. The case of the prosecution, rests on the evidence of two eye witnesses i.e. Chandrabaga Bhagat (P.W.1) and Pankaj (P.W.3). With the assistance of the learned Counsel present before the Court, we have considered the evidence of P.W.1Chandrabaga Bhagat. Deceased Ramabai, undisputedly, was daughter of P.W.1Chandrabaga and the accused is her soninlaw. The accused, was resident of Chandrapur. On 14th February, 2003, the incident took place. The accused, at the relevant time had been to the house of P.W.1Chandrabaga at village Nanza, Taluka Kalamb, District Yavatmal. Deceased Ramabai, undisputedly, was daughter of P.W.1Chandrabaga and the accused is her soninlaw. The accused, was resident of Chandrapur. On 14th February, 2003, the incident took place. The accused, at the relevant time had been to the house of P.W.1Chandrabaga at village Nanza, Taluka Kalamb, District Yavatmal. Chandrabaga (P.W.1) and her daughter (since deceased) were working as labourer on the date of incident. Both of them returned to the house from labour work. Pankaj and Dheeraj, children of the accused and the deceased Ramabai were present in the house. Ramabai herself, Chandrabaga (P.W.1) and her husband Bhanudas etc. were residing at the village Nanza. At the material time, i.e. in the evening on 14th February, 2003, accused came to the house. He was intemperate. Ramabai (deceased) asked him as to why he was beating small child like Dheeraj. However, Ramabai, gave her son Dheeraj, to her mother and started cooking food for the family. The accused, assaulted Ramabai. Ramabai went to a distance of around 10 to 15 ft. Accused followed her, brought back by beating her with stick. At that time, Neighbours had assembled there. On noticing this assembly, the accused closed the door of his house. It has stated by Chandrabhaga (P.W.1) that she was sitting near the door of the house with both the children i.e. Pankaj and Dheeraj. She smelled Kerosene oil from the house i.e. behind close doors. On suspicion of foul play, she pushed the door of the house and entered with Pankaj. Both of them noticed by opening the door of the house, that the accused had burning match stick in his hand. Pankaj, the son of the accused and Ramabai, could guess the intention of the accused and extinguished the burning match stick from the hands of the accused. It is stated by Chandrabhaga (P.W.1) that accused then threw another match stick on the body of Ramabai, due to which she was burnt. The accused then come out of the house. Chandrabhaga tried to extinguish the fire on the person of Ramabai by her hands. She got burn injuries on her hands. Her daughter Rama came out of the house. She specifically has stated that her left hand was burnt. She took Ramabai, her daughter, to the hospital at Nanza (Primary Health Center). According to her, the accused did not accompanied with them. She got burn injuries on her hands. Her daughter Rama came out of the house. She specifically has stated that her left hand was burnt. She took Ramabai, her daughter, to the hospital at Nanza (Primary Health Center). According to her, the accused did not accompanied with them. However, later on, he came to the Primary Health Center, Nanza. Ramabai was shifted to the hospital at Yavatmal that time Chandrabhaga (P.W.1) says that the accused accompanied with them. Her daughter Ramabai was admitted to the hospital at Yavatmal. Accused left the hospital and did not returned to the hospital,thereafter. On the next day of the incident, Ramabai died. P.W.1Chandrabhaga lodged the report to the police (Exh 31). The printed F.I.R. is at Exh32. 4. In her examination-in-chief itself, she explained that there were guests in her house and until 3rd day ritual, she could not go out to lodge the report. She, therefore, categorically explained three days delay in lodging the report to the police (Exh 31). She is very specific on her contention, that for performing the funeral on the dead body of Ramabai, the accused was not present. Police have investigated the crime. She had shown the spot of incident to the police. According to Chandrabhaga, Pankaj was 10 years old and Dheeraj was 4 years old, at the time of incident. Incriminating articles i.e. piece of clothes, can containing of Kerosene oil, were shown by this witness to the Investigating Authorities. In cross examination she fairly concedes, that there are many houses surroundings in her house at Nanza. The marriage of Ramabai with the accused had taken place on 1215 years, prior to the incident. After the marriage for about 2 years, Ramabai and accused lived at Chandrapur, at the residence of accused. She admitted that all the relatives of accused are from Chandrapur. She has also fairly admitted that Bhanudas is her second husband. Regarding the incident she concedes that at the time when Ramabai was burnt, the accused had also received 25% burns in an attempt to extinguish the fire on the person of Ramabai. Rambai was admitted and treated at Primary Health Center, Nanza. She has also fair in admitting the fact, that accused was also extended treatment at Nanza. Statement of Ramabai, according to her, was recorded in the hospital at Nanza. Rambai was admitted and treated at Primary Health Center, Nanza. She has also fair in admitting the fact, that accused was also extended treatment at Nanza. Statement of Ramabai, according to her, was recorded in the hospital at Nanza. In the hospital at Yavatmal also she says in her cross examination, that deceased Ramabai and the accused were admitted. Accused was treated in the hospital at Chandrapur, for about 7 to 8 days. She has admitted in the cross examination that her statement was recorded by the police after 3 days of the death of Rama. According to her, when Ramabai was being treated at Yavatmal hospital, the accused used to come to the hospital and even was present when Post Mortem examination was performed on the dead body of Ramabai. She admitted that at the time of Post Mortem examination police were present and dead body of deceased was handed over to Chandrabhaga (P.W.1) by the police. She admits in her cross examination that there is a police Chawki at Jodmoha village and also a city Police Station Yavatmal while coming to the hospital at Yavatmal. She fairly concedes that there is a Police OutPost in the hospital at Yavatmal itself. She denied the suggestion that there are about 1520 prohibition cases against her. She also denied the suggestion that she had indulged, at the relevant time in illicit liquor business in her village. Omission in her previous statement before the Police that Ramabai was cooking food and the accused started beating her due to which she went up to 15 ft. is not there in that statement. She also admitted the omission that the accused brought her in house by beating with stick in her police statement. Closing of door by the accused, this fact is omitted in her police statement, which she fairly concedes. Her contention that she pushed the door and entered into the house with Pankaj is also omitted in her Police statement. She fairly admitted that Ramabai was her daughter from her first husband and Bhanudas, the second husband of Chandrabhaga, did not like that deceased Ramabai and accused were leaving in her house. She, however, denied the suggestion that quarrel amongst herself and Bhanudas was on the count of Ramabai. She denied the suggestion that Ramabai, got burnt while cooking the food. 5. We have considered the evidence as a whole of P.W.1Chandrabhaga. She, however, denied the suggestion that quarrel amongst herself and Bhanudas was on the count of Ramabai. She denied the suggestion that Ramabai, got burnt while cooking the food. 5. We have considered the evidence as a whole of P.W.1Chandrabhaga. Her presence in the house is natural. Presence of the accused is not disputed. Her evidence, gives a truth of ring. Her candidness in admitting that Bhanudas, her second husband and step father of deceased Ramabai did not like Ramabai and Ramabai and accused were staying with them gives guarantee of truthfulness of her version. The omission brought on her evidence are not on core part of the incident. Delay in lodging the First Information Report has been properly explained by her. In our opinion, evidence of this witness inspires full confidence and has established that it is the accused who set ablaze deceased Ramabai. We have also noticed that in the process of extinguishing not only the Chandrabhaga sustained burn injuries to her hands but accused has also sustained burn injuries to his hands. 6. P.W.3Pankaj Laxman Patil is the son of accused and deceased Ramabai. He was 12 years old on the date of incident. His evidence (Exh42) reveals that he was residing along with his parents and grand parents at the time of incident. He himself and his mother were in the house and his grand mother was sitting outside the house. At about 7.00 p.m. on the date of incident, mother came to the house. His father asked her to prepare and serve the food. When she was preparing food, father assaulted his mother. When he asked his father as to why mother was being assaulted, he states that father rushed towards him he got afraid and was standing behind his grand mother, is a natural conduct of 910 years old boy at the time of incident. It is further stated by him that mother came out of the house to see him probably must be under the apprehension that accused will beat the Pankaj. This was not liked the accused, accused brought his mother by beating her with stick. He smelled Kerosene oil from the house and saw that his father was lighting match stick. He has specifically said that he extinguished the match stick and his father threw another burning match stick on the head of his mother. This was not liked the accused, accused brought his mother by beating her with stick. He smelled Kerosene oil from the house and saw that his father was lighting match stick. He has specifically said that he extinguished the match stick and his father threw another burning match stick on the head of his mother. His mother got burnt due to which she came out of the house. The grand mother Chandrabhaga (P.W.1) extinguished the fire and sustained burn injuries to her hands. His mother was taken to hospital at Nanza and on the next day she died. 7. In cross examination he admits that his statement was recorded after 23 days of the incident by the police and at that time his grand mother Chandrabhaga was present. He also admits that when he came to the Court for giving the evidence, grand mother Chandrabhaga (P.W.1) accompanied him. He denied the suggestion that he was giving evidence as per the dictation of his grand mother (P.W.1) Chandrabhaga. He admits that he used to do labour work and give charges to grand mother (P.W.1) Chandrabhaga. Omission in his previous statement that he went behind his grand mother, is admitted by him. He also admitted the fact which is not stated by him before the police that his mother came out to see him. He fairly admitted that his father had tried to extinguish the fire by putting clothes on his mothers body and got burnt injuries on his hands. He also admitted that he himself, his accused father, mother, grand mother and Bhanudas, who is his grand father had gone to the hospital at Nanza, where treatment was given to his father and mother. He also admitted that his father had been to the Yavatmal Hospital, wherein his mother was admitted. For cooking food there is a hearthin his house. This fact is admitted by him in his cross examination. Admission of accused at Chandrapur hospital was not known to him, therefore, he accordingly stated before the Court. He denied the suggestion that he was not permitted to meet his father, the accused. 8. Evidence of P.W.03 Pankaj, inspires full confidence. His presence in the house at the relevant time is natural. He has corroborated the eye witness account of P.W.1 Chandrabahaga. He denied the suggestion that he was not permitted to meet his father, the accused. 8. Evidence of P.W.03 Pankaj, inspires full confidence. His presence in the house at the relevant time is natural. He has corroborated the eye witness account of P.W.1 Chandrabahaga. Even though his statement is recorded after 23 days of the incident, in the background of this case that his mother died in the incident, his grand mother was in the hospital initially at Nanza and subsequently at Yavatmal, sufficient explanation of such delay is on record. 9. Our attention was invited to the evidence of P.W.04Haribhau Mukey, a person doing labour work in the hospital at Nanza at the relevant time. He has stated that Ramabai was admitted in the hospital. Evidence of this witness shows that she at that time, was saying that her husband had burnt her by pouring Kerosene on her person. We have considered the cross examination of P.W.4 Haribhau. This witness is examined on the point of oral dying declaration by the prosecution. No much importance could be attached to the evidence of this witness. 10. On behalf of the prosecution Mr. Gangadhar Sontakke (P.W.05) a Police Constable is examined to show that incriminating articles were carried i.e. plastic can, blue coloured terrycot saree, were forwarded to Forensic Science Laboratory, Nagpur for analysis. 11. On behalf of the prosecution, P.W.06 Dr. Balaji Satamwad, is examined. He was at Public Health Center, Nanza, on 14th February, 2003. His evidence shows that Ramabai, was brought in the hospital at 7.30 p.m.. He started first aid. Accused was stared giving troubles outside the hospital. He also testifies that patient ( Ramabai ) told him that the person outside the hospital had burnt her with the help of Kerosene and said person may be removed from the hospital. He accordingly, gave instructions to his subordinate. He identified the said person as accused before this court. He had treated Ramabai and her mother i.e. P.W.01Chandrabhaga. He referred all the injured to the main hospital at Yavatmal and had accompanied them. According to him accused ran away from the hospital. Certificate of sustaining burn injuries by Ramabai at 63% has been issued by this witness. He states that all these burns are homicidal burns. Said certificate(Exh.51) is perused by us. He admits in cross examination that he had recorded history of patient Ramabai. According to him accused ran away from the hospital. Certificate of sustaining burn injuries by Ramabai at 63% has been issued by this witness. He states that all these burns are homicidal burns. Said certificate(Exh.51) is perused by us. He admits in cross examination that he had recorded history of patient Ramabai. He also admits that 63% burns is the deep burn and serious in nature. He admits that accused had also sustained burnt injuries and was treated by him. He denied the suggestion that burn injuries sustained by Ramabai were not homicidal burn injuries. He also denied the suggestion that he had issued certificate in question at the instance of police. Omission that accused was creating trouble is brought out in his evidence. Evidence of this witness shows the extent of burn injuries i.e. 63%. 12. On behalf of the prosecution, P.W.07 Dinesh Chaube, Head Constable, is examined. It reveals from the evidence of P.W.07 that house of complainant P.W.01Chandrabhaga was closed and therefore, he returned back. This happened on 16th February, 2003. On 18th February, 2003, he again went to the house of complainant for recording the statement of P.W.01Chandrabhaga. He brought her to the Police Station Kalamb, registered the offence i.e. Crime No.23 of 2003 and handed over the investigation to other Police Officer. Principally this Police Officer is examined to show, that statement of P.W.01Chandrabhaga and Pankaj (P.W.03) was tried to be recorded. However, she was not available at village Nanza. Obviously, she was with patient. Thus, delay in recording statements of Chandrabhaga and Pankaj stands explained satisfactorily. 13. We have perused the evidence of P.W.08 Dilip Bijwe, who registered the Crime No.23 of 2003, under Section 302 of the Indian Penal code. It reveals from his evidence that on 19.02.2003. he went to the spot at Nanza and prepared the spot panchanama (exh.25) in presence of panch witnesses. He seized incriminating articles like plastic can smelling of Kerosene and one piece of saree from the spot, under seizure memo (Exh56). C. A. report(exh.58) is received by him. This C.A. report supports the prosecution case. He also recorded the statement of P.W.03 Pankaj, P.W.04 Haribhau. He explained the delay of recording the statement of Dr. Balaji, who had been to Mumbai. Nothing is elicited by the prosecution from his evidence to doubt the prosecution case. 14. We have considered the evidence of P.W.02 Dr.Manoj Tagalpallewar (Ex.39). This C.A. report supports the prosecution case. He also recorded the statement of P.W.03 Pankaj, P.W.04 Haribhau. He explained the delay of recording the statement of Dr. Balaji, who had been to Mumbai. Nothing is elicited by the prosecution from his evidence to doubt the prosecution case. 14. We have considered the evidence of P.W.02 Dr.Manoj Tagalpallewar (Ex.39). He has performed the Post Mortem examination on the dead body of Mrs. Rama Laxman Patil, in between 5.15 p.m. to 6.15 p.m. on 15.02.2003. He found following injuries. I) Burns (Sup. to deep) 1) H.N.F. 9% 2) Chest 18% 3) Upper limbs 18% 4) Lower limbs Rt. 06% Lt. 04% 5) Abdomen 03% Total 58% Incised wound (Surgicial venesection) with stiching on right leg just above med-melleous of size 2.5 x 1 x 1 cm. 1 5. From the evidence of P.W.02 Dr. Manoj, it appears that Rama had sustained 58% burn injuries. He opined that probable cause of death, was shock due to burn (Sup to deep burns). He also established Post Mortem Report(Exh 40). We have noticed the burn injuries mentioned on various organs of deceased Rama, i.e. from column No.17 of the Post Mortem Report with its cause of death. Cross examination of this witness is declined on behalf of the accused. The homicidal death, on account of burn injuries, as testified by this witness, P.W.02 Dr. Manoj, stands established. 16. We have considered the submissions of the learned Counsel appearing on behalf of the respective parties. In our opinion delay in lodging F.I.R., in the case on hand cannot be said to be fatal to the case of prosecution. Delay, if at all, in lodging First Information Report, always needs to be considered on the background of the facts of the case. Delay in lodging First Information Report does not ipso facto said to be a fatal to the case of the prosecution. No inference can be drawn that in case of delay in lodging F.I.R. false case or concocted case is tried to be made out by the prosecution. 17. Mr. T. A. Mirza, learned A.P.P. for the State, has relied on Judgment of the Hon'ble Supreme Court, reported in the matter of Ravinder Kumar and another .Vrs. State of Punjab (AIR 2001 Supreme Court, 3570). We have considered the ratio of this Judgment of the Hon'ble Supreme Court. 17. Mr. T. A. Mirza, learned A.P.P. for the State, has relied on Judgment of the Hon'ble Supreme Court, reported in the matter of Ravinder Kumar and another .Vrs. State of Punjab (AIR 2001 Supreme Court, 3570). We have considered the ratio of this Judgment of the Hon'ble Supreme Court. In our opinion, the ratio of this Judgment is applicable to the present case. 18. Three days delay in recording the statement of P.W.01CRIMINAL Chandrabhaga Bhagat, is also satisfactorily explained by the Police Officer, who had gone to the house of P.W.01Chandrabhaga and found it was locked and she was not there. Delay in recording the statement of Medical Officer Dr. Balaji is also clarified by the Investigating Officer. In our opinion, there is no merit in the submission on behalf of the prosecution pertaining to the delay in lodging F.I.R. or delay in recording the statement of P.W.01Chandrabhaga and P.W.03 Pankaj. Circumstance that accused has got 25% burn injury to hands, cannot be considered as mitigating circumstance in the facts of the case. Possibility of accidental burn injury is ruled out. The accused himself, set ablaze to deceased Rama and in process of extinguishment of fire had sustained burn injuries which could not be made a capital. In our opinion, the offence of murder under Section 300 of the Indian Penal code, has been proved to have been committed by the accused. The conviction and sentence inflicted upon the accused by the learned Trial Judge is legal and proper. The Appeal filed on behalf of the accused is meritless and deserves to be dismissed. 19. Appeal, therefore, stands dismissed by confirming the conviction and sentence awarded by the learned Trial Judge.