The court established that the offence committed by the appellant fell within the ambit of Section 304 Part-I of the Indian Penal Code, based on the dying declaration and medical evidence.

D. D. SINHA, J.

( 1 ) HEARD Mr. Daga, learned Counsel for the Appellant and Mr. Mirza, learned Additional Public Prosecutor for the Respondent-State.

( 2 ) CRIMINAL Appeal is directed against the Judgment and Order, dated 23rd october, 2000, passed by Fourth Additional sessions Judge, Nagpur, in Sessions Trial no. 336 of 1993 whereby the Appellant is convicted for the offence punishable under section 302 of Indian Penal Code, and is sentenced to suffer Rigorous Imprisonment for Life, and to pay a fine of Rs. 250-00.

( 3 ) IN the present case, before we consider the facts and circumstances, which have given rise to the prosecution of the appellant for the offence charged, we wish to mention that initially the Appellant was convicted by Fourth Additional Sessions judge, vide Judgment and Order, dated 21st november, 1994, passed in Sessions Case no. 336 of 1993, for the offence punishable under Section 302, Indian Penal Code and was sentenced to suffer Rigorous imprisonment for Life. The Appellant challenged the Judgment and Order of conviction by filing a Criminal Appeal bearing No. 8 of 1995 before this Court. At the time of hearing of the said Appeal, it was argued by the Counsel for the Appellant that the Trial Court did not follow the proper procedure while conducting examination of the appellant - accused under Section 313, criminal Procedure Code, which had resulted in serious prejudice to the Appellant. This court accepted the contention canvassed by learned Counsel for the Appellant and vide judgment, dated 13th September, 2000, quashed and set aside the Judgment and order, dated 21st November, 1994, passed by Fourth Additional Sessions Judge and directed the Trial Court to properly examine the Appellant-accused under Section 313, criminal Procedure Code, afford an opportunity in case he desires to lead any defence evidence, hear the prosecution as well as the accused/his counsel and thereafter pass a Judgment afresh. In view of the above referred directions given by this Court, the trial Court examined the accused under section 313, Criminal Procedure Code, and after taking into consideration the contention canvassed by the learned counsel for the defence and the prosecution, vide Judgment and Order, dated 23rd October, 2000, again convicted the Appellant for the offence punishable under Section 302, Indian Penal code, and sentenced him to suffer Rigorous imprisonment for Life. Being aggrieved by the said Judgment and Order, the Appellant preferred the present Criminal Appeal. The prosecution case, in nutshell, is as follows :-

( 4 ) DECEASED Rekha was the wife of the Appellant and the marriage was performed about eight years prior to the incident in question. On the date of incident i. e. on 18th May, 1993, Appellant and deceased Rekha were staying in the house of parents of deceased Rekha. The Appellant has one daughter and one son.

( 5 ) IT is the case of the prosecution that on 12th May, 1993 at about 5-00 p. m. , appellant, under the influence of alcohol, poured kerosene on the person of deceased rekha and set her on fire. She shouted for help. Her mother Parbatabai (P. W. 2), who was sitting in the courtyard of the house, rushed to the spot. After hearing the commotion, neighbours also gathered on the spot. In the presence of witnesses, deceased rekha said that Appellant had poured kerosene on her person and set her on fire. Deceased Rekha was initially taken to primary Health Centre at Jalalkheda. The doctor on duty informed Jalalkheda Police station about admission of the deceased in the hospital. Bargat, Head Constable, (P. W. 4) went to the hospital. He obtained opinion of the doctor as to whether the deceased was in a fit condition to give her statement, and after obtaining such opinion, he recorded Dying Declaration of deceased rekha, which is Exh. 37. In the Dying declaration, deceased Rekha stated that the appellant, under the influence of alcohol on the day of incident, poured kerosene on her pers