IMPORTANT POINT
Unintentional homicide comes within purview of Section 304 Part II IPC.

JUDGMENT

Ashok Bhushan, J.

This appeal has been filed by the appellant against the judgment and order of the High Court of Madhya Pradesh, Bench at Indore dated 25.03.2014 by which Criminal Appeal filed by the appellant questioning her conviction and sentence under Section 302 IPC has been dismissed.

2. The prosecution case in brief is:

Deceased, Smt. Lalita Bai was wife of Vijay Singh. The appellant is sister-in-law of the deceased. On 20.08.1999 in the late evening a quarrel was going on between Lalita Bai and her husband, Vijay Singh. The appellant who lives on the ground floor came on the first floor where Lalita Bai was boiling milk on battiwala stove. Appellant threw the burning stove on the deceased due to which clothes of deceased caught fire and serious burn injuries were caused. Husband of the deceased got her admitted in the M.Y. Hospital, Indore. On receiving information from the Hospital, a Police Inspector reached the Hospital. The information was mentioned in the Rojnamcha and Head Constable, Udai Pal Singh was sent in the Hospital where Lalita Bai was being admitted with burn injury with 96% burn. Report was asked for from the Incharge-Medical Officer as to whether patient was in a position to give the statement, after receiving certificate that the patient was fit to give statement, I.O. informed the Executive Magistrate-cum-Naib Tehsildar for recording her statement. Executive Magistrate-cum-Naib Tehsildar reached Hospital and recorded the statement of the patient, Lalita Bai. On the basis of the report case under Section 307 read with Section 34 IPC was registered on 20.08.1999. Lalita Bai, during the course of treatment died on 23.08.1999 and case has been registered under Section 302 IPC. Chargesheet was submitted both against Lalita Bai and Vijay Singh and the trial proceeded against both of them.

3. The prosecution in support of its case has produced 24 witnesses. The trial court after considering the evidence on record and relying on the dying declaration of the deceased recorded on 21.08.1999 held the appellant guilty of murder. Appellant was convicted with life imprisonment and fine of Rs. 2,000/-. Vijay Singh, husband of deceased was acquitted from charge under Section 302 read with Section 34 IPC. Appellant filed a criminal appeal in the High Court challenging her conviction and sentence. The High Court by the impugned judgment has dismissed the criminal appeal giving rise to this appeal.

4. This Court vide order dated 02.07.2015 issued limited notice which is to the following effect:

 "Delay condoned.

 Issue notice limited to the question of nature of offence.

 Prayer for suspension of sentence is rejected."

5. We have heard learned counsel for the appellant and learned counsel for the State of Madhya Pradesh, Shri Prashant Kumar.

6. Learned counsel for the appellant in support of his submission contends that the appellant ought not to have been convicted under Section 302 IPC. He submits that there was no motive for the appellant to kill the deceased. Appellant had neither intention nor motive to cause the death of the deceased.

7. Learned counsel has also submitted that deceased was not in a fit physical condition to record her statement, since the MLC of deceased clearly mentioned that the patient was restless, Afebrile, Pulse not palpable. It is submitted that the patient was so feeble and so restless then she was not in a position to give the correct version of the incident.

8. Learned counsel for the appellant placed reliance on the judgment of this Court in Hari Shanker vs. State of Rajasthan, (1998) 8 SCC 355, and submits that the facts of the present case are similar to the facts of the above case and in the above case this Court had altered the conviction from under Section 302 IPC to Section 304 Part II IPC and reduced the sentence of imprisonment for life to rigorous imprisonment for five years. This case also deserves the same treatment.

9. Learned counsel for the State refuting the submission of th