Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.11.2005 passed by learned First Additional Sessions Judge, Betul in Sessions Trial No.121/2002 convicting appellant for the offence punishable under section 302 of IPC and thereby sentencing him to suffer life imprisonment, this appeal has been preferred by the appellant under section 374(2) of the Code of Criminal Procedure, 1973.

2. In brief, the case of the prosecution is that on 15.3.2002 at about 10:00 p.m. Baby Bai (hereinafter shall be referred to as ‘deceased’), who is the wife of appellant, was lying the bed for her husband (appellant). At that juncture, some altercation took place between the appellant and deceased and thereafter the appellant gave a kick upon her abdomen, as a result of which, she fell down and thereafter the appellant after pouring the kerosene from the Kuppi, threw a burning match-stick upon her, as a result of which she sustained burn injuries. But, she died after 3 months of the incident. The deceased who was alive at that time was sent to hospital where her dying declaration was recorded by Dr. M.A. Ansari (PW14). After the death of deceased, the case was altered from section 307 to section 302 of IPC.

3. By making the appellant as an uxoricide the investigating agency investigated the matter. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court for trial.

4. The learned trial Judge on the basis of material available on record, framed the charge punishable under section 302 of IPC. Needless to say that appellant abjured his guilt and pleaded complete innocence.

5. In order to bring home the charge of section 302 of IPC against the appellant, the prosecution examined as many as sixteen witnesses and placed Ex.P-1 to P-32, the documents on record. The defence of the appellant is of maladroit implication and the same defence he set-forth in his statement recorded under section 313 CrPC but in support of his defence he did not choose to examine any witness. In his statement under section 313 of CrPC he has given explanation that when deceased received burn injuries, he tried to save her.

6. The learned trial Judge on the basis of evidence placed on record came to hold that the charge has been proved against the appellant and eventually convicted him and passed the order of sentence which we have mentioned in paragraph 1 of this judgment.

7. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

8. In his usual vehemence, Shri Pushpraj Pandey, learned counsel for the appellant by inviting our attention to the dying declaration of deceased has contended that she was not in such a condition that she could depose the dying declaration and if that is the position, learned trial Judge has erred in convicting the appellant under section 302 of IPC by holding that appellant is an uxoricide. An alternative submission has also been put-forth by learned counsel that if this Court comes to the conclusion that appellant has set her ablaze, since the deceased had died after about three months of incident, as she died on 9.6.2002 although the incident had occurred on 15.3.2002 and further that deceased had died on account of septicemia, therefore, at the most case would rest within the ambit and scope of section 326 of IPC. It has been submitted by learned counsel that on 16.3.2002 deceased was admitted to the hospital where her dying declaration (Ex.P-25) was recorded when her treatment was undergoing and was in the hospital upto 23.3.2002. However, the mother of deceased, against the medical advice, carried the deceased with her from the hospital. However, when her condition became more deteriorated at the house of her mother, she was again admitted in the hospital where she breathed her last and therefore at the most the