The admissibility of dying declaration and the determination of the appropriate section under IPC based on the nature of the offense and medical evidence.

S.K. GANGELE, J.

1. Appellant has filed this appeal against the judgment dated 18.04.2007 passed in Sessions Trial No.205/2006. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment alongwith fine of Rs.1000/-.

2. Prosecution case in brief is that relationship between the deceased and the appellant was not cordial. The appellant used to quarrel with the deceased and used to beat her. On the date of incident, at around 11 O'clock in the night, the deceased, who was the wife of the appellant, was sleeping in the house. The appellant came there. He abused the deceased. Thereafter, he had taken the deceased at the corner of the room and sprinkled kerosene on her and ablaze her. After hearing cry, other family members came on the spot. The deceased was taken to the Police Station Shahgarh. She lodged report on 10.08.2006. Thereafter, she was sent to the government hospital. Her dying declaration was recorded. Deceased died after seven days of the incident. Police conducted investigation and filed charge-sheet against the appellant. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant guilty for commission of offence and awarded sentence as mentioned above in the judgment.

3. Learned Amicus Curiae for the appellant has submitted that the trial Court committed error in convicting and sentencing the appellant. Prosecution witnesses have not supported the case. If the prosecution case is accepted as it is, then also, the offence committed by the appellant would fall under Section 304 Part I of IPC because the incident had happened all of a sudden. There was no intention of the appellant to kill the deceased. Hence, the sentence of the appellant be awarded as already undergone.

4. Learned Government Advocate has submitted that the prosecution has established the guilt of the appellant and the trial Court has rightly convicted the appellant and awarded proper sentence.

5. Prosecution witnesses, even the family members of the deceased, turned hostile. Conviction of the appellant is based on the dying declaration of the deceased.

6. PW-2 Chhigga, is the father of the deceased. He deposed that the deceased was living with the appellant. After marriage when she used to come to him, she did not make any complaint about the accused. I do not know how the deceased was died. PW-3 Bandu is the brother of the deceased. He deposed that the deceased committed suicide because the appellant did not send her to her father's house. PW-4 Anari is neighbour of the deceased and the appellant. He deposed that at around 11 O'clock in the night I was at my house. I had heard a sound. Thereafter, I went on the spot alongwith other persons. I asked from the deceased that how she catch fire. She told me that she herself set her ablaze. PW-5 Raju is nephew of the deceased. He deposed that after hearing cry, I reached on the spot and inquired from my aunty/deceased that how she catch fire. She told me that the appellant did not send her to her father's house and she herself set her on fire. Thereafter, I went to the field to call my uncle. PW-8 Mihilal is another neighbour. He also turned hostile. He deposed that when I reached at the house of the appellant, the deceased told me that she herself set her ablaze because the appellant did not send her to her father's house.

7. PW-6 Dr. R.K. Chourasiya examined the deceased after the incident. He deposed that the deceased was admitted in the hospital on 10.08.2006. She received burn injuries. Total percentage of burn injuries was 61% i.e. on face 9%, on neck 1%, on chest (internal) 9%, on chest (external) 9%, on the backside 9%, on stomach 6%, on right hand 9%, on left hand 9%, on right leg 3% and on left leg 6. I submitted a report, which is Ex.P7. Naib Tehsildar came to the hospital to record dying declaration of the deceased. I gave a certificate that deceas