JUDGMENT : A.L. Dave, J. The appellant was tried by the Sessions Court, Panchmahals at Godhra, for offences punishable under sections 302, 504 and 498-A of the Indian Penal Code, and was convicted therefor. For the offence punishable under section 302 of the I.P.C., he has been sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for thirty days. For the offences punishable under section 504 of I.P.C., he has been sentenced to rigorous imprisonment for two years with a fine of Rs. 250/-, in default, simple imprisonment for eight days, and for the offence punishable under section 498-A of I.P.C., he has been sentenced for a period of three years with a fine of Rs. 500/-, in default, simple imprisonment for fifteen days. The above verdict was handed by the Sessions Court, Panchmahals at Godhra on 10.01.2006. 2. The case of the prosecution is that the appellant was married to Abeda, and they had children from the wedlock. However, in recent past of the incident, the appellant had allegedly illicit relation with his sister-in-law (brother's wife) Nazma. This resulted into matrimonial disputes between the spouses. On the day of the incident, the appellant asked his wife Abeda as to why she is not permitting him to have relation with Nazma. It appears that the situation flared up, and the appellant set the deceased on fire. The deceased was rescued by the relatives and taken to hospital. Her First Information Report was recorded by Godhra Town Police Station, in which the deceased clearly implicated the present appellant of ill-treatment and of having set her on fire by pouring kerosene. Since the deceased has suffered extensive pains, her dying declaration was recorded with the help of Executive Magistrate by writing a yadi by the investigating officer. The Executive Magistrate recorded dying declaration of the deceased, which is on the same lines as the First Information Report, without any inconsistency. 3. The appellant's defence is three fold; first that the dying declarations are not believable or truthful, second that important eye witnesses have not supported the prosecution case, and third that the investigation is not proper, because the accused appellant had taken the plea of alibi, in which direction no investigation was made by the investigating officer. According to the accused-appellant, on the day of incident, he had gone to Surat. 4. According to the accused-appellant, on the day of incident, he had gone to Surat. 4. We have heard learned advocate Mr. Kharadi for the appellant and Mr. R.C. Kodekar, learned A.P.P. for the respondent State. 5. Mr. Kharadi submitted that though it has come on record, and investigating officer accepts that three lady witnesses had stated in their statement before him that on the day of incident the appellant had gone to Surat for his vocation work, namely, truck driving, the investigating officer Mr. Dawood Christi, has admitted in his cross-examination that he did not make any further probe on the basis of such statement made by the relatives. Mr. Kharadi submitted that, therefore, the investigation is biased, and not properly carried out. Mr. Kharadi submitted that even in the statement under Section 313 of Criminal Procedure Code, the accused has taken this plea, and the trial court has erred in not accepting the said plea. 6. Mr. Kharadi then submitted that though the Dying Declarations in the form of First Information Report and the dying declaration before the Executive Magistrate in first blush appeared to be consistent with each other, they are not consistent with each other. He submitted that the Dying Declarations do not pass the test of truthfulness, though the appellant is unable to assail them on the ground of genuineness. 7. Mr. Kharadi then submitted that important witnesses have not supported the prosecution case. He submitted that subsequent development also needs consideration. According to Mr. Kharadi, it has come on evidence of Farzana, sister of Abeda, that she is now married to the appellant. If what is alleged is true, Farzana would not have married the appellant, nor their parents would have permitted such a marriage. Mr. Kharadi submitted that it is not that the marriage of Farzana with the appellant was out of compulsion of looking after the children because it has come in evidence of Farzana herself that the children were being well kept by the family of the appellant. Mr. Kharadi, therefore, submitted that the trial court has overlooked this aspect, and has recorded conviction. Therefore, the appeal may be entertained. 8. On the other hand, Mr. R.C. Kodekar, learned A.P.P., has opposed this appeal. Mr. Kharadi, therefore, submitted that the trial court has overlooked this aspect, and has recorded conviction. Therefore, the appeal may be entertained. 8. On the other hand, Mr. R.C. Kodekar, learned A.P.P., has opposed this appeal. According to him, the plea of alibi is only an after-thought because that comes in the statements of relatives of the accused recorded after the arrest of the accused after seven months of the incident, and after marriage of appellant with Farzana. Mr. Kodekar submitted that the investigating officer may have missed to probe in the direction of alibi, but that would not outweigh the evidence in the form of dying declarations. Learned A.P.P. submitted that the evidence of the doctor, the Executive Magistrate, and the dying declaration itself would clearly establish that the deceased had consciously and consistently deposed against the appellant and that is good enough to record conviction. The appellants do not dispute the genuineness of dying declaration and so far as truthfulness of the dying declaration is concerned, it is duly established. Learned A.P.P. submitted that the defence ought to have come out with a clear and clean story to exculpate the appellant. In the instant case, there is consistent material to implicate the appellant and the appellant's appeal, therefore, must fail. 9. Having heard both the sides, and having examined the record and proceedings in context of their respective submissions, we find that the prosecution witnesses in general do not support the prosecution case. However, the independent witnesses like Medical Officer, Executive Magistrate and investigating officers have supported the prosecution case. Reason for the prosecution witnesses not supporting the prosecution case is obvious, obvious in the sense that, after the incident, the appellant had married the sister of the deceased. He has three children from the marital tie with the deceased. We, therefore, do not deem it appropriate to go into the aspect of the prosecution witnesses not supporting the prosecution case. We have before us a dying declaration in the form of First Information Report and a dying declaration recorded by the Executive Magistrate. Both these dying declarations are consistent with each other. The only defect in both of them that is sought to be assailed upon by learned advocate for the appellant is that the deceased in the declarations has said that she has two children out of the wedlock, whereas, in fact, she has three. Both these dying declarations are consistent with each other. The only defect in both of them that is sought to be assailed upon by learned advocate for the appellant is that the deceased in the declarations has said that she has two children out of the wedlock, whereas, in fact, she has three. The appellant is unable to challenge the dying declarations on their genuineness, i.e. the procedure followed in recording the dying declarations. We have also examined the dying declarations recorded by the Executive Magistrate, so also the deposition of the Executive Magistrate. It is clear that the Executive Magistrate, after reaching the hospital, approached the Medical Officer, ascertained the medical condition of the patient, and then went to the patient, removed the relatives, introduced himself as Executive Magistrate, informed about his purpose, and then recorded the dying declaration. The exercise undertaken by the Executive Magistrate before actually recording the dying declaration would also reflect that the deceased was fit to give dying declaration, and the same was certified by the doctor. However, in the endorsement made by the doctor there are some erasers and overwriting, and therefore, it was argued that the certificate of the doctor may not be accepted on its face value. In this context, we find from the evidence, and that too during cross-examination, that initially the doctor had said that the patient was not conscious, but when the relatives approached the doctor and raised objection, he went to the patient, examined the patient, and scored out the word “not”, and certified that she is conscious. This leaves no doubt in our mind that the patient was conscious, and fit to give dying declaration. So far as test of truthfulness is concerned, it is the main target by the defence. It may be recorded that except the mistake in number of children, the defence is unable to point out any other aspect, which would render the dying declarations doubtful about their truthfulness. It has to be kept in mind that the deceased had suffered 78% burns, and she was under treatment by that point of time. Besides that, the mistake that had occurred may occur only if the patient is not fit to give declaration, which aspect is ruled out by certificate from the doctor, and number of children will have hardly any significance so far as the incident is concerned. 10. Besides that, the mistake that had occurred may occur only if the patient is not fit to give declaration, which aspect is ruled out by certificate from the doctor, and number of children will have hardly any significance so far as the incident is concerned. 10. The truthfulness in the dying declaration gets support from the conduct of the accused. After the incident, the accused does not take any action by himself. If he was out as he has claimed at Surat, he would have come back and taken some action, which part is missing. Within three months of the incident, he marries his sister in law as if nothing has happened, and thereafter also, he presented himself before police after about four months somewhere in January. This conduct on the part of the accused speaks volumes about his attitude towards the deceased and his life with the diseased, and leaves nothing to imagination. 11. So far as the plea of alibi is concerned, it is purely a creature of an afterthought, for the reason that it is only for the first time after the arrest of the accused when the statements of relatives are recorded that they say that the appellant had gone to Surat for his profession on the day of incident. In our view, the accused-appellant cannot be said to have discharged his burden of proving the alibi. The appellant did not produce any material on record to show that on the day of incident he was at Surat as is claimed by him nor has he examined any defence witness. 12. The foregoing discussion would show that the dying declarations passed the test of truthfulness and genuineness. The conduct of the accused-appellant after the incident goes against him. The trial court was, therefore, justified in convicting the appellant. We do not find any reason to interfere with the finding of the trial court. 13. Learned advocate Mr. Kharadi has relied on the decision in the case of P. Mani v. State of Tamil Nadu [ (2006) 3 SCC 161 ] where it is held that dying declaration must be wholly reliable, and in case of suspicion, the court could seek corroboration. 13. Learned advocate Mr. Kharadi has relied on the decision in the case of P. Mani v. State of Tamil Nadu [ (2006) 3 SCC 161 ] where it is held that dying declaration must be wholly reliable, and in case of suspicion, the court could seek corroboration. In the instant case, the only doubt that is raised is about number of children stated by the deceased, otherwise, both the First Information Report and dying declaration pass the test of truthfulness, and the conduct of the accused post the incident corroborates the allegation made in the dying declaration. We are, therefore, inclined to accept the dying declarations at their face value. 14. Learned advocate Mr. Kharadi then stated that the dying declaration itself contains an averment that the accused got provocated and then poured kerosene and set the deceased afire, therefore, according to Mr. Kharadi, Exception 4 to section 300 would be attracted. We are unable to agree with Mr. Kharadi, for the reason that the dying declarations only reveal that upon the deceased objecting the appellant going to and maintaining illicit relations with his sister-in-law, the appellant got provoked and poured kerosene on the deceased and set her on fire. Exception 4 to section 300 requires that there must be sudden quarrel and fight, and the offender must not have taken undue advantage or acted in a cruel or unusual manner. May be, that there was no pre-meditation, but there is no element of fight between the deceased and the appellant, and it cannot be said that the appellant did not take undue advantage of the situation when he poured kerosene on the deceased and set her on fire, nor can it be said that he did not act in a cruel or unusual manner. In our view, Exception 4 to section 300 by no stretch of imagination, can be said to be attracted. Simply because the deceased objected to the appellant maintaining illicit relation with his sister in law, it cannot be considered a valid ground for the appellant to get provoked. Element of provocation comes in Exception 1 to section 300, which is also argued by learned advocate for the appellant. Simply because the deceased objected to the appellant maintaining illicit relation with his sister in law, it cannot be considered a valid ground for the appellant to get provoked. Element of provocation comes in Exception 1 to section 300, which is also argued by learned advocate for the appellant. A wife has a legitimate right to object to her husband maintaining illicit relation with any other woman, and if that is done, it cannot be considered a provocation given to the accused, which would entitle him to make his case fall under Exception 1 to section 300 of Indian Penal Code. By any stretch of imagination, it cannot be said that the case would fall within the definition of culpable homicide not amounting to murder as is sought to be argued by learned advocate for the appellant. 15. For the foregoing reasons, the appeal must fail and stands dismissed. Appeal dismissed.