The court established that sudden provocation and lack of premeditation can allow conviction under Section 304 Part II IPC instead of Section 302 IPC.

1. This criminal appeal under S.374(2) of the CrPC preferred by the appellant - accused is directed against the impugned judgment of conviction and order of sentence dated 10.03.2014 passed by the learned Sessions Judge, Durg, District Durg, in Sessions Trial No.218/2013 by which appellant has been convicted for offence under S.302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs. 4000/-; in default of payment of fine additional rigorous imprisonment for four months.

2. Case of the prosecution, in short, is that on 30.06.2013 at about 11:00 pm at Rawanbhatha, Supela, Police Statioin Supela, District Durg, appellant poured kerosene oil on body of his sister - in - law - Jyoti Yadav and set her ablaze by which she suffered burn injury and on 06.07.2013 during treatment, she succumbed to death and thereby committed the offence.

3. Further case of the prosecution is that the deceased - Jyoti Yadav used to stay with her husband - Ratan Yadav (PW - 3) and at the same place appellant herein along with her grand - mother - Sukhiya Bai used to stay. It is also the case of the prosecution that on the fateful day in the night at about 11:00 pm the appellant visited the house of the deceased - Jyoti Yadav and her husband - Ratan Yadav (PW - 3) and quarrelled with them and asked them to vacate the suit house claiming that it is owned by his grand - mother - Sukhiya Bai, which was refuted by Ratan Yadav (PW - 3) and deceased - Jyoti Yadav, and then, out of anger and out of provocation the appellant poured kerosene oil on deceased - Jyoti Yadav lying there and set her ablaze by which she suffered burn injury and immediately thereafter, fire was extinguished by Ratan Yadav (PW - 3) and she was taken to the Supela Hospital. Dying declaration of the deceased - Jyoti Yadav was recorded on 01.07.2013 by Madhu Harsh, Additional Tehsildar - cum - Executive Magistrate (PW - 12) vide Ex.P / 20 after having been certified by Dr. Sarita Minz (PW - 14) to be in fit state of mind and during treatment she died on 06.07.2013. Dead body was sent for post - mortem which was conducted by Dr. Nalin Chadra Rai (PW - 6) and as per the post - mortem report (Ex.P / 8) cause of death is septicemia due to 65% burn injury.

4. After due investigation, appellant was charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

5. In order to bring home the offence prosecution has examined as many as 14 witnesses and exhibited 24 documents and defence in support of its case has neither examined any witness nor exhibited any document.

6. The learned trial Court after appreciating the oral and documentary evidence available on record convicted the appellant as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

7. Mr. Dhiraj Kumar Wankhede, learned counsel for the appellant, submits that considering the statements of Ratan Yadav (PW - 3) and Kunti Bai (PW - 4) (bua of the appellant), conviction of the appellant is liable to be set aside and even dying declaration is not reliable, not trustworthy and the appellant is entitled for acquittal.

8. On the other hand, Mr. Neeraj Pradhan, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for offence under S.302 of the IPC and prosecution has been able to prove the offence beyond reason