The importance of dying declaration, interpretation of legal provisions, and consideration of similar case law in determining the appropriate section of the IPC applicable to the appellant's actions.

S.S. Dwivedi, J.

1. The appellant has preferred this criminal appeal under Section 374(2) of Cr.PC feeling aggrieved by the impugned judgment of conviction and sentence dated 9-8-1999 passed by Additional Sessions Judge, Ganjbasoda District Vidisha in Session Trial No. 177/1998, whereby the appellant has been found guilty for the offence under Section 302 of IPC and sentenced him to imprisonment for life.

2. Briefly stated facts of the case are that admittedly the appellant/ accused is the husband of the deceased Pinki. On 17-8-98 at about 5 p.m. at Village Bedankhedi, it is alleged that some quarrel took place in between the deceased Pinki and the appellant/accused, due to which, it is further alleged that appellant/accused poured kerosene on the body of the deceased Pinki and thereafter, set her on fire. Deceased Pinki was admitted in the hospital in the burnt condition where Dr. R.K. Jain examined the burnt lady Pinki and found 50 to 55 per cent superficial burn on the body. The matter has been reported to the police station concerned, on which basis, a case under Section 307 of IPC has been registered. Dying declaration of the injured Pinki has also been recorded by Suresh Chandra Gangwani, the Executive Magistrate, in the presence of treating Dr. P.K. Jain which is Exh. P-16. During investigation, spot map has been prepared by the police concerned and statements were also recorded. During treatment, after 5 days, on 22-8-98 Pinki died due to burn injuries in the Hamidiya Hospital, Bhopal. An information has been given to the police, on which basis, inquest report has been registered at Bhopal and thereafter it is sent to Police Station, Ganj Basoda, where the original case has been registered under Section 302 of IPC. A memo for post-mortem examination has also been issued by the Investigating Officer, on which basis, Dr. Geetarani Gupta performed the post-mortem examination and proved the report (Exh. P-11). After due investigation, charge-sheet has been filed.

3. The appellant/accused abjured the guilt and his defence was of false implication in this case. Learned Trial Court after due appreciation of the entire prosecution evidence on record by the impugned judgment held the appellant/accused guilty for the offence under Section 302 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal.

4. Heard learned Counsel for both the parties and perused the record and impugned judgment.

5. Learned Counsel for the appellant submitted that alleged incident took place all of a sudden without any pre-intention. As per dying declaration of the deceased Pinki, the appellant/accused had poured kerosene on her and thereafter set her on fire. First examining Dr. R.K. Jain found 50 to 55 per cent burn injuries on the body of the deceased. Similarly, Autopsy Surgeon Dr. Geetarani Gupta as per post-mortem report found that Pinki died due to burn injuries and its complications which resulted in failure of Cardio Respiratory System. Therefore, if the burn injuries are not direct result of death of deceased Pinki and she died due to complications near about 5 days after the incident then the offence which can be found proved against the appellant may be the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC as held by the Trial Court. Therefore, only prayer on behalf of the appellant is for alteration of his conviction from Sections 302 - 304 Part I of IPC. With regard to the sentence is concerned, it is submitted that appellant is in custody since the date of his arrest, i.e., from 20-8-1998 and has completed more than 11 years' jail sentence, therefore, prayed for the sentence already undergone by the appellant in jail.

6. Learned Public Prosecutor appearing for the State supported the impugned judgment and submitted that appellant had willfully poured kerosene on his wife Pinki and intentionally set her on fire, therefore, his intention f