The main legal point established in the judgment is the application of Exception 4 to Section 300 of IPC, considering the absence of premeditation and the sudden outburst leading to the death, leading to the alteration of the conviction to Part-II of Section 304 of IPC.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the judgment and order dated 30.12.2016 passed by Second Additional Sessions Judge, Manendragarh, District Korea in Sessions Case No.23/2014, by which the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.2000/- and in the event of non-payment of fine amount, to suffer additional Simple Imprisonment for 3 months.

2. Case of the prosecution, in brief, is that on 19.12.2013 at about 1:30 p.m. at his house, the appellant lightened matchstick on the body of his wife Jyoti by which she suffered 70% of burn injuries and later she died on 21.12.2013 during the course of her treatment in the Community Health Centre, Manendragarh. At the hospital, her dying declaration was recorded vide Exhibit P-15 by the Executive Magistrate, PW-18 Amit Kumar Gupta after PW-13 Dr. D.K. Singh certified that the deceased was in a fit mental and physical state to give her dying declaration and which implicated the appellant for the burn injuries caused to his wife Jyoti resulting in her death on 21.12.2013. Post-mortem was conducted by PW-17 Dr. Vikas Kumar Poddar vide Exhibit P-21A in which the cause of death of deceased Jyoti has been opined to be due to shock following burn injuries and the mode of death was asphyxia. Merg Intimation was recorded vide Exhibit P-11 and the F.I.R. was registered vide Exhibit P-18. Spot Maps were prepared vide Exhibit P-19 & P-20. Statements of the witnesses who were conversant with the facts of the incident were recorded under Section 161 of CrPC. Seizure proceeding was made and the seized articles were sent for chemical examination to F.S.L. Raipur. In F.S.L. report (Exhibit P-24), particles of kerosene have been found on the seized jerry-cane (B) and matchsticks (C).

3. After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Baikunthpur and after committal, the matter was transferred to the Court of Second Additional Sessions Judge, Manendragarh for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

4. During the course of the trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 24 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/ appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

5. After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 30.12.2016, on appreciation of the oral and documentary evidence available on record, found the appellant guilty of the offence of murder punishable under Section 302 of IPC and accordingly convicting him for the said offence, sentenced him to undergo Life Imprisonment and to pay fine of Rs.2000/-with default stipulation, being aggrieved of which the present appeal has been filed by the appellant.

6. Ms. Reena Singh, learned counsel appearing for the appellant, would make a solitary submission that since the deceased herself had poured kerosene oil on her body and the appellant on the spur of the moment had only lightened the matchstick, at best, the case of the appellant would fall under Part-II of Section 304 of IPC and the sentence of the appellant may be reduced to the period already undergone as he is in jail since 20.12.2013, i.e. more than 10 years, and the appeal may be allowed accordingly.

7. Mr. Arvind Dubey, learned Government Advocate, per contra, would submit that the prosecution