The main legal point established in the judgment is the need for a dying declaration to inspire full confidence and be subjected to close scrutiny, as well as the importance of corroborating evidence and the proper recording of dying declarations through an Executive Magistrate.

JUDGMENT

Vinay Joshi, J. - Heard learned Counsel for the parties.

2. Challenge in this appeal is to the judgment and order of conviction of appellant/accused for the offence punishable under Section 304 Part-II of the Indian Penal Code, for which the Trial Court has imposed sentence to suffer rigorous imprisonment for 5 years and to pay fine of Rs.10,000/- with stipulation of default. The appellant/accused was initially charged for the offence punishable under Section 302 of the Indian Penal Code, however, the trial Court held the accused guilty for the offence punishable under Section 304 Part-II, and imposed the sentence as mentioned above.

3. The prosecution case as it emerges from the record is that, the informant - Meghraj (P.W.2) was running a grocery shop at village Mungoli. On 15.12.2017, the informant filled petrol in his motorcycle at village Ghughus and also brought petrol in a plastic bottle. The informant kept the plastic bottle containing petrol on the counter of his grocery shop and went to his nearby house for taking meals. At that time, the informant's father - Yogiraj [deceased] was warming himself at coal fire infront of his shop. It is the informants' case that the accused arrived at his grocery shop and demanded bottle containing petrol to his father. Since the deceased Yogiraj refused, the accused threatened him and threw plastic bottle containing petrol in the coal fire where the deceased was seated. In the result there was ablaze in which Yogiraj caught fire. The nearby person gathered and extinguished the fire. Yogiraj sustained severe burn injuries, hence he was shifted to hospital.

4. On the basis of the said report, police registered crime vide C.R.No.250/2017, for the offence punishable under Section 307 of the Indian Penal Code. During the course of investigation panchnama of the scene of offence was drawn, clothes of Yogiraj and other articles were seized. While Yogiraj was in the hospital of Dr. Paliwal, his statement [dying declaration] came to be recorded. Unfortunately Yogiraj succumbed to his burn injuries on 27.12.2017, hence, the police added offence of homicidal death punishable under Section 302 of the Indian Penal Code. Police carried inquest panchnama and post mortem was conducted on the dead body. After completion of investigation charge sheet came to be filed.

5. On committal, the trial Court has framed charge against the appellant/ accused for the offence punishable under Section 302 of the Indian Penal Code. Since the accused denied the guilt, prosecution has examined in all 10 witnesses to prove his guilt. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. The defence of accused is of total denial and false implication. Having regard to the oral and documentary evidence, the trial Court held that the prosecution has proved the incident as alleged, however, held that the act of accused constitutes an offence punishable under Section 304 Part-II of the Indian Penal Code, and accordingly passed the judgment and order of conviction.

6. The learned counsel for the appellant has submitted that the trial Court has erred in believing the evidence of informant and dying declaration, which resulted into miscarriage of justice. No independent witness, though available was examined. Investigating officer has not endeavored to record dying declaration through Executive Magistrate. There was impossibility of obtaining thumb impression of the deceased on the dying declaration since his upper limbs were fully burnt. It is his submission that P.W.2- informant though admits that he had not witnessed the incident, however, the trial Court discarded said vital admission for no valid reason. In short, despite convincing evidence/material, the trial Court erred in convicting the accused.

7. Learned A.P.P. appearing for the respondent State has strongly supported the judgment and order of conviction. According to him, the trial Court has rightly appreciated the evidenc