Brij Kishore Dube, J

[1] Feeling aggrieved by the judgment of conviction and order of sentence dated 28.08.09 passed by the learned Additional Judge, Mungaoli, District Ashok Nagar, in Sessions Trial No.110 of 2009 (State of Madhya Pradesh Vs. Gudda and another), convicting the appellants under Section 449 of IPC and thereby sentencing each of them to suffer rigorous imprisonment for ten years with fine of Rs.1,000/ , in default of payment of fine further one year rigorous imprisonment, further convicting appellant, Maan Singh under Section 302 of IPC and Gudda under Section 302 read with Section 34 of IPC and thereby sentencing each of them to suffer rigorous imprisonment for life and fine of Rs.1,000/ in default of payment of fine further one year imprisonment, with further stipulation that the jail sentences shall run concurrently, the appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

[2] Prosecution story, in brief, may be narrated as under:

(i) That, in the intervening night of 23 rd and 24 th June, 2006, the complainant, Anita Bai (since deceased) alongwith her children was sleeping in the court yard while her husband was sleeping inside the room of her house. On 24/06/2006 at about 03.00 hours in the morning, both the accused, Gudda and Maan Singh came to her house, enquired about her husband. She replied that he went to village Leharai and did not return back. On this, Maan Singh told the other accused, Gudda to lit fire over her then, she abused them. At that juncture, Gudda caught hold of her and Maan Singh poured kerosene from a CHAMPA (small can) and with an intention to kill her, Maan Singh lit the match stick, as a result of which she started burning, then she screamed for help. On hearing her shriek, her husband, Ramesh (P.W.1), Devar, Sevaram (P.W.4) and Bhatija (brother's son), Sher Singh (P.W.3) rushed to the scene of occurrence and they extinguished the fire and during the course of extinguishing the fire, her husband received burn injuries on his hand. Three days prior to the date of the alleged incident, there was some heated exchange of words between her and Maan Singh. On this issue, both the accused persons have burnt with an intention to kill her.

(ii) That, Anita Bai was brought in burned condition by her husband, Ramesh at Police Station, Mungaoli where she lodged the report of the incident;

(iii) That, on the basis of the aforesaid report, FIR was registered at Crime No.108/06 (Exhibit P/16) under Section 307/34 of the IPC by Praveen Asthana, Station House Officer, (P.W.12). The injured, Anita Bai was sent to for medical examination and treatment at Community Health Centre, Mungaoli and simultaneously, requested the Tehsildar, Mungaoli to record her dying declaration. Radheshyam Shrivastava (P.W.6), Executive Magistrate/Tehsildar came to the hospital and recorded her dying declaration (Exhibit P/8) after obtaining the necessary certificate of her physical and mental condition from the Doctor;

(iv) That, Dr.Dinesh Tripathi (P.W.7), Medical Officer, Community Health Centre, Mungaoli examined Anita Bai and vide medical report, Exhibit P/9 found that almost her whole body burnt except the body from both knees upto toes and, therefore, looking to her serious condition referred her to the District Hospital, Guna for further treatment from where she was referred to Bhopal but on the way she succumbed to the burn injuries. After the death of the deceased, the case was altered from Section 307/34 to Section 302/34 of the IPC;

(v) That, V.S.Gautam, Assistant Sub Inspector (P.W.11) has prepared the map of scene of occurrence (Exhibit P/ 2); seized necessary articles from the place of occurrence and the seized articles were sent for FSL examination. The Investigating Officer held inquest on the dead body and sent it for post mortem examination. Dr. V.K. Sharma (P.W.8) conducted post mortem at the Community Health Centre, Mungaoli and opined that mode o