The absence of pre-planning or premeditation in a criminal act can influence the categorization of the offence under the Indian Penal Code.

JUDGMENT

Vivek Rusia, J. - The appellants have filed this appeal against the judgment dated 26.12.2011 passed by Additional Sessions Judge, Mandleshwar, District Khargone in Sessions Trial No.14/2011 whereby they have been convicted u/s. 302/34 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.2,0002000/- each and in default of payment of fine, to further undergo 50 days' RI. The appellants have been convicted and sentenced, as aforesaid, on account of committing murder of Vikram in prosecution of common intention by setting him ablaze after pouring him kerosene oil.

2. Facts of the case, in short, are as under :

The marriage of the deceased was solemnized with appellant No.3 20 years ago and they have three children viz. Raju (P.W.6), Shailendra (P.W.8) and daughter Reena. 15 days before the date of the incident, Jasodabai came to the house of her brother Rajaram. On 26.9.2010 at 5 pm., Vikram came there to take his wife Jasodabai and children. Jasodabai objected as he is a habitual drinker. There was a verbal altercation between them. By that time, Rajaram and Kankiya came there and questioned him as to why he has come to their house. Both of them caught hold of him, Jasodabai brought kerosene oil cane and matchbox, poured on Vikram and set him on fire. He shouted but nobody came to save him. He removed his clothes. Thereafter, his parents and brother-inlaw came on a motorcycle to the place of the incident. He narrated the entire story and took Vikram to the hospital.

Dehati Nalisi (Exh. P/14) was recorded by the police at the instance of Vikram and on the basis of which, FIR (Exh. P/15) was registered. He was taken to Maheshwar Hospital for treatment and from where MLC report vide Exh. P/5 was sent to Police Station . Police reached the spot and drew a map vide Exh. P/16 procured half burnt clothes of Vikram, plain and kerosene stained soil, tin and plastic can of kerosene, etc. vide Exh. P/17. The accused were arrested vide Exh. P/18, P/19 and P/20 respectively. Since the condition Vikram became serious, therefore, he was referred from the Maheshwar Hospital to the M.Y. Hospital, Indore and during treatment, he succumbed to the burn injuries. His dying declaration was recorded by the Tehsildar vide Exh. P/6 in which he has made specific allegations against all the accused/appellants. He died on 26.9.2010 ,an autopsy was conducted and according to which, he suffered 100% burn injuries and died of its complications. Initially, FIR was registered u/s. 307/34 of the IPC against all the accused but after the death, it was converted to offence u/s. 302/34 of the IPC.

Upon completion of the investigation, charge-sheet was filed on 23.12.2010 and the trial was committed to the Court of Sessions on 4.1.2011. Charges were framed which the appellants denied and pleaded their false implication. According to them, Vikram was a habitual drinker and in intoxication condition, he poured the kerosene on himself and set him ablaze. He committed suicide and they have falsely been implicated.

In order to prove the charges, the prosecution has examined as many as 12 witnesses. In defence, the appellants examined 8 witnesses. After evaluating the evidence that came on record, learned Additional Sessions Judge has held that although none of the prosecution witnesses has supported the prosecution case, there is no reason to disbelieve the dying declaration which is corroborated by the medical evidence and accordingly convicted and sentenced the appellants, as stated first. Hence, this appeal before this Court.

This Court has rejected all the earlier applications for suspension of the jail sentence, therefore, the appellants are in jail since their date of arrest i.e. 27.9.2010 and have completed more than 11 years of incarceration.

3. Shri Vivek Singh, learned counsel for the appellants submits that he is not assailing the findings on the merits of the case at this stage. He submits that even if the dying declaration of the dece