IMPORTANT POINT
The court established that the distinction between murder and culpable homicide hinges on the intent of the accused, with Section 304 Part-I applicable when the act does not demonstrate a clear intention to kill but results in death due to bodily injury likely to cause death.

JUDGMENT

G. Satapathy, J.

 The convict by way of this appeal calls in question the judgment of conviction and order of sentence dated 31.10.2011 passed by learned Sessions Judge, Koraput at Jeypore in Criminal Trial No. 93 of 2010 convicting the appellant for offences punishable U/Ss. 498-A/302 of Indian Penal Code, 1860 (in short "IPC") and sentencing him to undergo imprisonment for life for offence U/S. 302 of IPC, while acquitting him of the charge for offence U/S. 498-A of IPC.

2. The prosecution case may be outlined as, one Sakuntala (hereinafter referred to as the "deceased") had married to Ashu Khila (hereinafter referred to as the "convict") and on 25.11.2009 in the night, the convict had set fire to the deceased after pouring kerosene and accordingly, the mother of the convict had admitted the deceased to hospital on 26.11.2009. On this incident, the brother of the deceased P.W.4-Sukru @ Chandra Kuldip lodged a FIR under Ext.4 on 26.11.2009 at about 12.30 P.M. against the convict before P.W.12-Bijayini Singh I.I.C., Damanjodi P.S. who registered Damanjodi P.S. Case No. 42 of 2009 for offence U/Ss. 498-A/307 of IPC and directed ASI of Police P.W.11-Purushottam Swain to investigate into the matter. Accordingly, P.W.11 in the course of investigation, examined the witnesses, issued injury requisition in favour of the deceased to PHC Mathalput, arrested the convict and got the dying declaration of the deceased recorded on 28.11.2009 by Executive Magistrate P.W.-10 Dibya Lochan Mohapatra at bed No. 50, DHH, Koraput under Ext.7. P.W.11, however, handed over the investigation to P.W.12 after recording the statement of the deceased under Ext.15. Accordingly, P.W.12 commenced the further investigation and submitted charge sheet against the convict for offence U/Ss. 498-A/307 of IPC. However, on getting information from P.W.4 about the death of deceased, P.W.12 has successfully prayed to the Court and reopened the investigation, in the course of which, he sent the dead body of the deceased for post mortem examination and accordingly, submitted charge sheet against the convict for offence U/Ss. 498-A/302 of IPC under which cognizance was taken and the convict faced the trial for such offences after pleading not guilty to the charge.

3. In support of its charge, the prosecution examined altogether 12 witnesses and relied upon the documents Exts. 1 to 15 as well as identified three materials objects under M.O.I to M.O.III as against the sole oral evidence of D.W.l-Roila Khilla by the defence. Of the witnesses examined by the prosecution, P.W.4 is the informant, P.W.lO is the Executive Magistrate who recorded the dying declaration of the deceased, P.Ws. ll & 12 are the two I.Os. whereas, P.W.8-Dr. Sonali Mishra who had examined and furnished the injury report of the deceased as well as convict and P.W.9-Dr.Niranjan Mishra is the doctor who had conducted post mortem examination over the dead body of the deceased. P.W.4 and P.W.6-Anam Kuldip are the brothers of the deceased and P.W.5-Kamala Kuldip is the sister-in-law of the deceased. P.W.2-Arati Podder and P.W.3-Ramesh Chandra Pradhan are the two police constables and seizure witnesses. P.W.7-Pabitra Kuldip is also a seizure witness. P.W.l-Jisudan Kuldip is the witness to inquest.

4. The plea of the convict in the course of trial was one of complete denial and false implication, but in his statement U/s. 3l3 of Cr.P.C. the convict took the additional plea of alibi and deceased died while cooking in kitchen.

5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellant for offence U/S. 302 of IPC by mainly relying upon the evidence of P.Ws. 4 to 6 and 10 and the dying declaration of the deceased Ext.7.

6. At the outset, Mr.S.K.Mohanty, learned counsel for the appellant has submitted that the appellant is not challenging his conviction on merit, rather he prays for modification of his conviction from offence U/S. 302 of IPC to 304 Part-